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<S<ot\. loo
5 So
CASES
DECIDED IN
THE COURT OF SESSION,
FROM
NOV. 14. 1826 to JULY 11. 1827-
REPORTED BY
PATRICK SHAW am> ALEX. DUNLOP Jon.
Esquires, Advocates.
VOL. V.
.H
EDINBURGH :
PRINTED FOR WILLIAM BLACKWOOD.
1827.
I
(L.vx.
ScoH. loo
5 5o
S<o<r\. loo
5 So
**'£
CASES
DECIDED IN
THE COURT OF SESSION,
FROM
NOV. 14. 1826 to JULY 11. 1827.
REPORTED BY
PATRICK SHAW am> ALEX. DUNLOP Jon.
Esquires, Advocates.
VOL. V.
EDINBURGH :
PRINTED FOB WILLIAM BLACKWOOD.
1827.
Printed by J. Sfuuo and Co* SdMhtrgk.
JUDGES
OF THK
COURT OF SESSION
DURING THE PERIOD OF THESE REPORTS.
FIRST DIVISION.
Lord President Hope.
Xiord Craigie.
Lord Balorat.
Lord Gillies.
PERMANENT LORDS ORDINARY.
Lord Meadowbank.
Lord Eldin.
Lord Corehouse.
SECOND DIVISION.
Lord Justice-Clerk Boyle.
Lord Glenlee.
Lord Pitmilly.
Lord Allow ay.
- -r. «^-
i *
PERMANENT LORDS ORDINARY.
*
Lord Cringletie.
Lord Mackenzie. »
Lord Medwyn. #
lord ordinary on the bills.
Lord Newton.
Sir James Moncreitf, Baronet, Dean of Faculty.
Sir William Rae, Baronet, Lord Advocate.
» «
John Hope, Esquire, Solicitor-General.
..: ...\ .
♦•
INDEX OF MATTERS
IN
VOLUME V.
Absolute and Revocable.— See Right, Absolute and Revocable.
Account, Settled.— See SetUed Account.
Accumulation or Action*, — See Process, I. 8.
Acqoibsoench.— Soe Burgh Rouul, 1.— Entail, A.
ABJUDICATION.
1. No ground for staying 'intimation of a first adjudication, that the
debtor had executed a trust-deed of all his heritable property for
behoof of his credHors, on which the trustees had taken infeft-
ntent, No. W4. p. 374.
% A party haying acquired right as principal tacksman to a long
lease, and his name having been entered » the rental-book of the
proprietor, and having subset part of the subject, and thereafter
obtained a renunciation and reconveyance of the sublease, held
preferable to a creditor adjudging in virtue of a bond and assigna-
tion in security granted subsequently by the subtenant, No. 120.
p. 200r~£ee Burgh Royal, %.— Prescription, 5.
Admission, Qualified. — See Proof, I.
Agent amp Client.
1. Agent in fc cause for m party in whose flavour expanses have been
awarded, net entitled to object to deduction of a sum of expenses
in which his client had been found liable at a previous stage of
the proceedings, No. 37- p. 49.
fc <5roamstsn*es under which an agent who had been advised by
counsel 4a> prepare a summons in a particular form, and which
was found erroneous, was entitled to payment of his account, al-
though instructions to a diferoat effect had bean grvcn, No* 164.
p. 276.
3. In an action by a law agent under a sequestration against a cre-
ditor for payment of his account, held not a sufficient defence that
instructions had been given by the creditors to the trustee, and
inserted in the sederunt-book by the agent, to raise an actknt ft*
a debt, and obtain a vendition of the share of a ship, which not
having been done, the debt and price of the share had been lost —
there being no evidence that he had received instructions from the
trustee to take such steps, No. 251. p. 60&r— See Sequestra-
tion, \\.
▼<hl. ▼. a
ii INDEX OF MATTERS.
Agent and Client.
4. The executors of a client having insisted that the business ac-
counts of his agent for a series of years, which had been rendered
and not objected to, but which had not been docqueted, should
be audited ; and the agent having been in a great part successful,
both in relation to the amount of the charges, and to other liti-
gated points — Held,
fl.J That he was entitled to modified expenses.
(2.) That it was not an objection to decree going out in the
name of the agent in the cause, who had appeared as such from
the commencement, that the party himself (who was a practitioner
before the Court) had chiefly taken the management of the pro-
cess, No. 266. p. 521.
6. Law agent found liable for the loss arising from an heritable se-
curity not having been effectually completed, No. 442. p. 903w —
See Attorney's License— Interest, 1 — Prescription, II. 4.—
Process, I. 4.
Aliment. — See Husband and Wife, 5.
Appeal.
1. A party having made a deed of settlement, conveying his whole
heritage, and particularly two pieces of land ; and. it having been
found by the House of Lords, that although he was facile, yet he
. had a capacity to dispone, provided he were sufficiently informed
as to the nature of the deed, but that he had not been so as to
the lands ; and having set aside the deed quoad the lands ; held
not competent to extend the judgment to other heritable, sub-
jects, No. 14. p. 22.
2. Circumstances under which leave to appeal was refused, No. 235.
p. 417* No. 236. p. 418. and No. 301. p. 671.
3. Held incompetent to entertain an objection to the validity of a
judgment of the House of Lords, that although it bore that the
party had appeared and been heard,, yet in point of fact he was
dead, No. 354. p. 751.
Appeal, Execution pending.
Held incompetent* for a Lord Ordinary to transfer against an. exe-
cutrix, a warrant issued against a defunct for interim execution
pending appeal, No. 321. p. 696.
Apprentice.
1. A master currier having ceased to take out the licence required by
certain acts of Parliament — Held,
(1.) That he was not entitled to enforce the penalty in the in-
denture of an apprentice, whom he alleged to have violated his
agreement; and,
(2.) That the apprentice was entitled to be freed from the in-
denture, though actually receiving instruction in the trade, No. 4.
p. 3. . >
Arbitration.
1. Circumstances in which it was held,
(1.) That a decree-arbitral could not in part be sustained, and
in part set aside.
(2.) That aa ex parte, explanation by the arbiter, after pro-
nouncing his award, is ineffectual.
INDEX OP MATTERS. iii
Arbitration.
(8.) That a reference forming part of an agreement did not fall
by the decree pronounced being inept ; bat,
(4.) That the referee chosen may, by his conduct, disqualify
himself from again deciding, No. 90. p. 140.
2. A submission forming part of an agreement, held not to fall by
an omission* to prorogate within tiie year, No* 96. p. 154.
3. Arbiters under a submission, which empowered them to pronounce
interim decrees, and declared that although the submission should
expire as to points on which 'they differed in opinion, it should
still continue as to those on which they agreed, having pronounced
two interim decrees, copies of which only were delivered to the
parties, the principals remaining in the hands of the clerk ; and
having afterwards declared the submission terminated, and de-
dined to pronounce any deliverance on a memorial by the clerk
as to a demand made by one of the parties to have the interim
decrees put on record— Held that the decrees were invalid,
No. 347. p. 785.
4. A submission having been entered into without any limitation in
point of time, and not containing the usual blank clause applicable
to the endurance ; and the parties having, after the expiry df a
year, gone, on pleading and leading proof before the arbiters and
oversman — Held, in a reduction of a decreet-arbitral afterwards
pronounced,
Jl.) That the submission did not fall by the lapse of the year ;
(2.) That at any rate the parties had prorogated it by their
conduct, No. 445. p. 906.
Arrestment.
1. Held thatrthe arrester is in no better situation than the common
debtor, and that he cannot recover where the common debtor
could not do so, No. 52. p. 74.
2» Held that the salary of an extractor of the Court of Session is
arrestable. No. 459. p. 926. — See Jurisdiction — Poinding —
Process, V. 7*
Arrestment Jurisdictions Ftodandje Causa* — See Jurisdic-
tion, I. a.
Assignation.
Circumstances under which it was held that an assignation of the
snare of a lease, forming part of the stock of a partnership, by
one partner to another, does not require formal intimation to com-
plete it, in order to make it effectual against the creditors of the
cedent, No. 433. p. 891.
Attorney's License.
1. Circumstances in which decree was allowed to go out for expenses
of a process conducted by an unlicensed attorney, who had after-
wards taken out certificates under the 7th Geo. IV. c. 44, No. 140.
p. 234.
£. The executor of a writer to the signet having obtained decree
in absence for certain business accounts, and a reduction having
been brought, in the course of which it was alleged that the writer
had not taken out his attorney license during the currency of the
iv INDEX OF MATTERS.
Attorney's License.
Account*, whereby he had no right to recover payment— Held
competent for the executor, pending the process, to pay the arrears
of duties under the statute 7th Geo. IV., and thereby remove the
objection, No. 229. p. 388.
3. Held that an unlicensed agent acting as agent in his own cause,
and who has got decree for expenses, cannot recover more than
his outlays, No, 296. p. 658.
Bankrupt.
1. A partner and manager of a company having discounted bills be-
longing to the company for its behoof, and being indebted private
nomine to the company in a sum which he ought to have paid or
entered to that effect in his account with the company, and having
retired the bills within 60 days of his bankruptcy as an individual,
whereby his debt to the company was extinguished, and of which
he made an entry in their books-— Held, that as it was his duty
prior to the 60 days to have paid the debt, whereby fund* belong-
ing to the company were in his hands as manager sufficient to re-
tire the bills, the transaction was not reducible on the act 1696,
c. 5, No. 171. p. 293.
2. (1.) Held, on a remit from the House of Lords, and altering the
previous judgment in the cause, (ante, VoL IV. No. 74.) that
a payment in cash by a bankrupt, within 60 days from his bank-
ruptcy, to an indorser of a bill accepted by the bankrupt but not
then due, ' as a provision for payment of the said bill when it be-
' came due/ is reducible under the act 1696, c. 6, independent of
fraud at common law.
(2.) Question raised, but not decided, whether, on a simple re-
mit to review, it be competent to award expenses in the House
of Lords, No. 844. p. 729. — See Sequettration — Trust, 2. 3. 5.
Bastard. — See Proof, IV. — Mmrriage, 1.
Bill of Exchange.
1. Held that the presumption of onerosity in favour of the bolder
of a bill blank indorsed, and delivered subsequently .to its dis-
honour, and after diligence had been raised, can oaly.be redargued
by writ or oath, No. 127. p. 208.
2. A party having been charged as payee and indorser jȣ a promis-
sory note, but not being designed on the face of it,. and hia desig-
nation having been without authority inserted in the diligence,
and 'he denying that he w&s a party to the note, and it appearing,
comparatione titerarum, that the indorsation was net hia signature,
the letters were suspended simpliciter, No. 189. p. 318.
3. A bill drawn in Scotland upon and accepted by a party in England,
is an English debt, quoad a Scotch indorsee, equally as in a ques-
tion with the acceptors, No. 323. p. 700.
4. A party having granted a promissory note, payable to the credi-
tor of another party, and that party having delivered it for value
to the creditor — Held, that although the creditor had not given
value to the grantor, yet he was entitled as an onerous holder to
recover payment from him, No. 360. p. 773.
ft. Non-onerosity of indorsee only proveable by writ or oath, No. 373.
p. 794.
INDEX OF MATTERS.
v
Bill of Exchange*
6. Held that there being no lawful evidence of fraud against the
holder of a bill, he n entitled to the ordinary privileges of a
holder, No. 376. p. 796.
7. Circumstances in which* although a party admitted that he had
granted a promissory note, which was prescribed, and that he had
not paid it, yet, having denied that it was ever intended to con-
stitute a debt against him, was found not liable for the debt,
No. 804. p. 620.
8. A joint acceptor of a hill holding a letter of relief from two co-
acceptors, having retired it in part, and received two other bills
from them for the amount so paid by him — Held, in an action at
his instance, founded both on the letter of relief and these bills,
(1.) That hk claim was not barred by the sexennial prescrip-
tion, or the vitiation of one of these bills ; and,
(2.) That the presumption that a partial payment, marked gene-
rally by the holder of a bill which' had been discounted, had been
made by the acceptor, may be redargued by a special receipt in
favour of the drawer when the bill was finally retired, No. 422.
p. 676-— See Proof, HI. 1. 2. 3. 5.
Bojta From*— 8ee Prescription, 2.
Buroh Royal.
1. A singular successor to a property in a town is not entitled to in-
sist On the removal of a well erected in front of it by the Magi-
strates for the public convenience, except in so far as it encroaches
on an private property, it having stood without objection for 3d
years, No. 155. p. 261.
2. A petition and complaint against the election of Magistrates hav-
ing been presented in name of a party who was a native Scots-
man, a resident burgess, and a constituent member of the meeting
for election, but who at the date of the complaint was abroad, and
no mandatory having concurred — Held,
( I.} That it was incompetent at bis instance ; and,
(2.) That a party who had appeared and litigated the case as
a respondent, could not skt himself as a complainer, No. 253.
p. 565.
3. A Royal Burgh having become insolvent, and a decree of adjudi-
cation of its whole property having been obtained in foro by a
creditor — Held, in a ranking and sale brought by the creditor,
(1.) That the decree of adjudication was not such a res judicata
as to prevent the Magistrates from opposing the sale of certain
parts of the property which had been adjudged.
(2.) That the Crown had right to appear and object to the sale
of the jail and town-house ; and,
(3.) That it is incompetent for creditors to sell the jail and
town-house, with its steeple and its bell, or the petty customs of
a Royal Burgh, No* 317* p. 690.
4. In a disputed election of the Deacon and Colleague of an Incor-
poration of a Royal Burgh — Held that the votes of persons regu-
larly qualified to be admitted freemen, and only for the first time
admitted en the day of election, were not objectionable on the
ground of temporary non-residence in the interval between the
i
J
vi INDEX OF MATTERS.
expiry of their apprenticeship and the date of admission, No. 363.
p. 749^ — See Jurisdiction, 2. — Process, 3. 5.
Canal. — See Road Acts, 4.
Caution, Juratory. — See Juratory Caution.
Cautioner. %
1. Circumstances under which it was held that a principal debtor
was bound to relieve bis cautioner, without abiding the discussion
of certain alleged counter claims, No. 33. p. 47.
2. Held that cautioners for the trustee on a bankrupt estate were re-
lieved by the &ros*> negligence of the commissioners and credi-
tors in superintending and controlling the conduct of »the trustee,
No. 74. p. 111. ♦ «
3. Held that where a cautioner for a trustee has been found not
liable for his misconduct in respect of the gross negligence of the
commissioners and creditors, it is not relevant to allege that the
claim of a creditor had been rejected and was under discussion,
and so could not interfere in the management of the estate, in re-
spect ho was not thereby deprived of his control over the conduct
of the trustee, No. 76* p* 116.
4. A Bank having granted a cash-credit, to be operated on by a
company consisting of three partners, on security of a bond, to
which the company, and the individual partners as such, and as
individuals, were parties, and having continued to make advances
to the company after the retirement of one of the partners, duly
notified in the Gazette, and specially to the Bank — Held that the
retired partner was not liable under the bond for a balance arising
on advances so made, No. 109. p. 1 75.
6. Held,
(1.) That an improbative cautionary missive for a tenant is ren-
dered binding by the tenant being put into possession on the faith
of it.
(2.) That a landlord does not lose his recourse against cau-
tioners by neglecting to enforce his right of hypothec ; and,
(3.) That cautioners for a tenant * for the first three years rent of
< a subset/ are not freed in consequence of no written lease for a
definite period of longer endurance having been granted, No. 188.
p. 317.
6. Parties having bound themselves as cautioners for a tenant, but
stipulated that the landlord should exercise his right of hypothec
• before having recourse on them ; and he having sequestrated the
tenant's effects, but it being alleged that lie had delayed to sell
them — Held that the cautioners were liable, No. 290. p. 597*
7* A party having interposed as cautioner for two distressed cau-
tioners in a debt, which was settled by dividing it into two equal
parts, and granting a promissory note for each half ; and the in-
terposing cautioner having put his name on both— Held entitled
to relief from one of the original cautioners, who alleged that he
had interposed for the other cautioner alone, No. 341. p. 726.
8. A cautioner bound himself to pay for goods purchased 'by another
within three months, and goods having in consequence been sold
within that time, and a bill for the amount, payable at a period
subsequent to it, having been taken from the purchaser; and when
INDEX OF MATTERS. r\i
i
Cautioner.
it fell due, another having been received by the latter, but the
original bill having been retained — Held that the cautioner was
liable to pay the debt, No. 361. p. 774.
4. Held that the cautioners of a messenger, who has been guilty of
negligence in executing a summons, cannot be subjected in pay-
ment of the debt, until it has been constituted against the debtor,
No. 184. p. 311. — See Foreigner.
CiSttlO JkUfORUM.
1. An opposing creditor in a cessio bonorum, having Ailed to prove
allegations of fraud brought by him against the bankrupt, found
liable in the expenses of the proof, No. 71* P- 108.
2. A judgment granting the benefit of cessio having been pronounced
in absence of the creditors, where all the procedure had been
regular, held not subject to review, No. 121. p. 201.
3. Held not necessary, in peculiar circumstances, for the pursuer of
a cessio, against whom a writ of extent had issued, to call the
Officers of the Crown as defenders, No. 168. p. 291.
4. A cessio refused to the father of a bastard child, who was incar-
cerated by the mother for payment of aliment, No. 255. p. 508.
5. A pursuer of a cessio having been incarcerated for the full period
of a month, and being ready to appear and submit himself to the
orders of Court— Held no objection to his title to pursue that he
was not in jail at the date of raising the summons, No. 267.
p. 525.
6. Warrant granted, without caution, for liberation of a debtor in-
carcerated in a provincial jail, who had obtained judgment award-
ing the benefit of cessio, but whose oath could not be reported
before the rising of the Court, in consequence of the roads being
blocked up with snow, No. 287. p. 565.
7. A party who had illegally appropriated to himself funds belong-
ing to his employer, and spent them, refused the benefit of the
cessio, although he had suffered 18 months imprisonment, No. 825.
p. 703- — See Diligence, Legal, 1.
Church.
Circumstances under which an heritor who had paid his share of the
assessment for rebuilding a parish church, was found liable in a
share of the expenses and interest arising on bills granted and re-
peatedly renewed by a committee of the heritors for a deficiency
occasioned by several heritors having failed to pay their shares,
No. 856. p. 761.
Church Seat. '
Circumstances in which a bill of suspension and interdict against
occupying a seat in church passed, No. 28. p. 42.
Cjtatiojt.
Circnmatances under which a party was allowed to found on a ser-
vice copy to show that the citation was erroneous, No. 451.
p. 915.
City ^— See Road Act*.
Clause.-— See Testament— Trust, 9. — Warrandice, 3.
Clkrk ov Court.— See Justice, Administration of, 1. — Sheriff'
Clerk.
viii INDEX OF MATTJBBS.
Coal.
Circumstances in which a party holding in. lease two fields of coal at
some distance from each other, together with a right to the use
of a level belonging to the lessor for: the purpose of working these
fields, found liable to pay the lessor a consideration for the benefit
derived by him, in consequence of carrying the level through cer-
tain intermediate fields of his own, in order to make the com-
munication to the upper coal-field let to him. by hia lease, No. 96.
p. 154. — See Servitude.
Common Sbwers^— See Nuisance, 2. — Separation, L
Compensation.— See Decree in Foro, % — Trust, 2.
Composition-Contract.
1. Held that on a bankrupt failing to pay a composition under an ex-
trajudicial contract, the original debt revives. No. 23. p. 36.
2. A creditor under an Extrajudicial composition-contract, having
got an obligation from the debtor to pay his full debt, but having
thereafter discharged it on payment of the composition ; and hav-
ing afterwards got a bill for the balance due on the full debt from
'the debtor, which was prescribed — Held not entitled to recover
under the obligation, No. 320. p. 695.— See Sequestration, 9.
Curator Bonis. *
1. Authority granted to a curator bonis to complete his ward's titles,
Mo.448. p, 268.
2. The appointment of a curator bonis being remedium extraordina-
rium, the Court will not interfere where the minor canxhoose his
own curators, No. 310. p. 684.
Deathbed. — See Title to Sue, Sfc. 4.
Debitor non presumjtcb Donare. — See Provisions to Children, 2.
Declarator. — See Process, I. 8.
Decree in Absence.
1. Held that a decree against pupils and their tutors, pronounced after
appearance of the pupils and one tutor, was not to be held as a
decree in absence as to another tutor who had not appeared,
No. 111. p. 179.
2. Circumstances in which the Court reduced decrees of constitution
and adjudication in absence, without requiring the party to pay
the expenses of the decrees, No. 444. p. 90$.
Decree in Foro.
1. Circumstances under which a plea of compensation against a
charge on a decree in foro for expenses was repelled, No. 30.
p. 43.
2. A party having been charged on a decree of the Court of Session,
bearing to be in foro, and to have proceeded on a petition by an
agent against his client under the A. 8. Feb. 6. 1806, and that it
had been duly served — Held competent to pass a bill .of suspen-
sion on caution for the expenses of the decree merely, on the alle-
gation that it had been served on the opposite agent, and not on
the party, No. 331. p. 715.
3. A legacy having been left under an English will to the heir of
conquest' of the testator, who by the same will ineffectually be-
queathed his landed estate in Scotland to another party.; and the
heir having taken up the estate, and an action having been brought
INDEX OF MATTERS. ix
DECREE IN FORO.
against him, concluding that be should denude of the estate, or
otherwise hare his right to the legacy declared forfeited ; and
baring been allowed to take the opinion of English counsel to
show that his right was not forfeited ; but not having done so,
and having relied on information from an English solicitor that
his right was forfeited ; and having thereupon moved for and ob-
tained absolvitor from the conclusion for denuding, and decree
against him of forfeiture of the legacy — Held not entitled to open
«p the decree, on the allegation that the information of the solici-
tor was erroneous, No. 421. p. 871.
Decree of Constitution.
Circumstances under which decree of constitution was pronounced,
tisting execution, No. 76. p. 116.— -See Executory 1.
DlMOENCE, IiSGAL.
1. A party having conveyed all his property in trust for behoof of
bis creditors, under which it was distributed among them, and
baring obtained decree of cessio, and executed the requisite dis-
position, and horning having thereafter been used against him on
a debt prior to the cessio— Held,
(1.) That he was not entitled to suspend on the ground that
there bad been no discussion under the disposition omnium bono-
rum in the cessio, it not being alleged that he had acquired: any
funds subsequent to the date of the trust-deed ; but,
(2.) That be was warranted in bringing a suspension as to per-
sonal diligence, there being nothing on the face of the charge to
show that the creditor was to restrict his diligence to poinding,
No. 54. p. 76.
2. A creditor having executed a caption against his debtor, without
indorsing a restriction to the balance to which the debt had been
reduced by partial payments since the date of the letters, and the
messenger, who was likewise employed as an agent to procure a
settlement of the debt, having taken his prisoner to the office of
the creditor's agent, instead of directly to jail, without any appli-
cation to that purpose from the prisoner, though not against his
will, held that the creditor was liable in damages, No. 80. p. 128.
S. Held incompetent for a Sheriff to stop execution of letters of
horning proceeding on an extracted decree in absence pronounced
by mm, No. 189. p. 232.
4. A charge against the drawer of a bill, proceeding on a protest re-
corded, not in 1iie jurisdiction where he resides, but where the bill
is payable, is irregular, No»231. p. 412.— See Poinding.
DrroacBv~~8ee Hukband and Wife> 2.
Donation.
An opulent uncle having advanced money for the education and out-
iit of his nephew during his minority, and who was in poor cir-
cumstances, and baring entered it in his books, but having died
without requiring repayment, or taking any document of debt —
Held that it was to be presumed that the advances had been
made ammo donandi, and that his trustees were not entitled, after
has death, to insist on repayment, No. 180. p. 219/— See Provi-
stoft* to Children, 2.
x INDEX OF MATTERS.
Entail.
. 1. Bill of suspension passed as to the questions, ,
(1.) Whether an heir of entail, succeeding in virtue of the for-
feiture of a prior heir, is entitled to an entry as an heir, or as a
singular successor; and,
(2.) Whether, where the entail has been recognised by a former
superior, to whom the present one has succeeded as an heir of en-
tail, the latter can be affected by that acknowledgment, No. 20.
p. 80.
2. A party having succeeded to an estate by virtue of an entail pro-
' hibiting sales, but against which there was no irritant nor resolu-
tive clause — Held,
(IS) That he was entitled to sell the estate ; but,
(2.) That he was bound to reinvest the price in lands, and to
take the titles under the terms of the entail, No. 237. p- 418.
3. An heir of entail in possession having granted a lease, binding
himself and his heirs to pay for meliorations — Held that an action
for payment of them lay against his representatives, and not against
a succeeding heir of entail, No. 336. p. 722.
4. Bill passed to try the question, whether an heir in possession of
an estate under an entail was entitled to cut wood necessary to
the comfort and amenity of the mansion-house, No. 387* p.' 811.
6. Held,
(1.) That an heir of entail prohibited from selling, but having
power to do so in consequence of a defect in the resolutive clause,
and who sold the estate, was bound to reinvest a sum equivalent
to the price in lands to be entailed in terms of the original entail.
(2.) That a judgment in a question tried with the heirs of en-
tail, as to the validity of a disposition to a purchaser, was not a res
judicata as to the heir's obligation to reinvest ; and,
(3.) That a substitute heir was not barred from insisting on the
fulfilment of that obligation by a delay of nearly 30 years from
the date of the sale, No. 390. p. 882.
6. A party having, for the purpose of creating a freehold qualifica-
tion, granted a feu-right of certain lands on which the disponee
was infeft, and having also disponed the superiority ; and having
thereafter executed an entail of his estates, including the lands in
question, which was duly recorded, and, after his death, the dis-
ponee having executed a disposition of the lands in favour of the
heirs called in the entail, and under the same conditions, &c. as
were contained in the entail, setting forth that he (the disponee)
held the lands merely in trust ; but this disposition not having been
recorded — Held, that as the deed executed by the disponee had
not been recorded, it could not prevent a creditor from proceeding
with diligence ; and question raised, but not decided, Which of the
two deeds was the original entail, the recording whereof was ne-
cessary to secure the estate against creditors ? No. 465. p. 937* —
See Prescription, 1. 6.
EgBCUTOR.
Held that a debtor of a party deceased is warranted to pay to his
executor nominate, although unconfirmed ; and that a knowledge
of a certain sum being set apart by the deceased as a provision
\NDEX OF MATTERS.
for his wife and children does not put the debtor in mala fide to
transfer a sum to the account of the executor of similar amount
at the credit of the deceased, — the particular sum in question not
having been appropriated by the deceased to that purpose. No. 360.
p. 785,— See Foreigner— Title to Sue, Sfc. 2.— Passive Title, 2.
1. (1.) The expenses of two Jury trials having been awarded, held
that the expense of examining on commission a witness, whose de-
position was afterwards read to the Jury,— of preparing issues in
this Court,— of the discussion in this Court in obtaining a new
trial,— and of opposing a bill of exceptions, fell under the award.
(2.) Interest allowed on expenses, No. 266. p. 524.
2. In a case relative to an urban tenement, the defender having
been found entitled to expenses, and the auditor having reserved
the question whether he had right to the expense of a lithographic
plan of the premises, which he had made without the order of
Court, found, that although it had been extremely useful, the
expense of it could not be laid on the opposite party, Note,
p. 659.
8. Trustee for a bankrupt litigant not entitled, in skting himself as
party to the process, to insert a qualification that he shall not be
liable for the expenses, No. 382. p. 805- — See Agent and Client,
1. 4. — Attorney 'e License — Bankrupt, 1. — Cessio,\.— Justice,
Administration of, 1. — Mandatory, 3w — Poor's Roll — Process,
I. 7. III. 1. V. 4. 7. VI. 8. VIII. 3. IX. 1. 2. 4.— Sequestration, 3.
—Sheriff-Clerk's Fees— Stat. 6. Geo. IV. c. 120^— Trust, 3.
Previous.
A party having obtained a bill of suspension to be passed, and hav-
ing expede letters thereon, but having allowed judgment finding
the letters orderly proceeded to go out by default, must, on pre-
senting a new bill, pay the expenses previously incurred, No. 27.
p. 41. — See Decree in Absence, 2*— Decree in Foro, 2d — Poor's
Roll— Process, VI. 9. IX. 3.
Factor loco Tutoris.
1.(1.) That a judicial factor loco tutoris under the Act of Sederunt,
Ten. 13. 1730, is liable in interest upon interest on sums which he
has neglected to recover in terms thereof ; and,
(2.) That, by neglecting to comply with the rules of the A. S.,
he is not entitled to any commission, No. 46. p. 62.
2. A complaint having been made against a party as factor loco tu-
toris, and he having alleged in defence that he was a protutor, and
that therefore the complaint was irregular, the Court, being sa-
tisfied that such was not the fact, repelled the defence, No. 107.
p. 173.
3. Circumstances in whkh an interim factor loco tutoris was ap-
; pointed to act during the currency of the usual intimation on the
\ walls, No. 286. p. 564.
Faculty.
V Circumstances under which it was held that a power of dividing a
sum bequeathed by a deed of settlement had not been validly
executed, and that in terms thereof it belonged to the legatees
equally, No. 66. p. 101. — See Landlord and Tenant, 4.
xii INDEX OF MATTERS.
Fes and Liferent.
Circumstances in which a parent was found to he a liferenter, and
the children fiars, No. 300. p. 814.
Feb, or Spes Successions.
Lands having been conveyed to J. T. and three others, inter alia, for
the purpose of dividing them into a certain number of shares, and
the truster having declared, * that I hereby appoint that 4J of
' these shares shall be held by the said J. T. in liferent, during
* all the days and years of his lifetime, and at his decease the fee
1 and property thereof shall be divided among the children law-
' fully procreated of his body as follows ;' and having then spe-
cified certain proportions, and instructed the Survivors or survivor
of the disponees to see that they should be so divided ; and the
deed being granted under these conditions — Held that J. T. was
merely a liferenter, and that his children were fiars, No. 364.
p. 779.
Feudal Title. — See Freehold Qualification, 3. — Heritable Security
—Proof, V. 2.— Salmon Fishing, 2.
Foreign.
A native of Scotland, who was domiciled in India, but part of whose
•property was vested in heritable bonds in Scotland, having exe-
cuted a will in India, which was not effectual to carry the heri-
table bonds ; and a question having arisen, whether his heir at
law, who claimed the heritable bonds as heir, was also entitled to
claim a share of moveables under the will— Held that the con-
struction, of the will, as to whether it expressed an intention to
carry the Scotch heritage, and the legal consequence of that con-
struction, must be determined by the law of England, No. 57. p. 78.
See Bill of Exchange, 3. — Jurisdiction, 2. — Marriage, 1.
Foreigner.
Circumstances under which it was held that cautioners for executors
confirmed in a Scottish Court, but who resided in England, could
not be called on to count and reckon in terms of their bond, till a
decree was obtained against the executors, No. 424. p. 879.— See
Jurisdiction, 1.
Forgery.
1. A bill of suspension passed simpliciter of a charge on a bill, *hich
the Court was satisfied from inspection was forged, No. 29. p. 43.
2. Bill of suspension passed simpliciter of a charge on a bill appear-
ing, comparatione literarum, to be forged, No. 261. p. 517* — See
Bill of Exchange, 2. — Process, VI. 3.
Freehold Qualification.
1. An objection may be pleaded in Court, though not recorded in
the Freeholders' minutes, No. 93. p. 150.
2. A claim for enrolment as a freeholder having been rejected on
the ground of nominal and fictitious, the Court, after ordering and
advising written interrogatories and answers subscribed by the
claimant, repelled the objection, No. 103. p. 168.
3. Held,
(1.) That although a disposition containing procuratory and
precept, on which sasine is taken, be confirmed by a charter of
confirmation and resignation, yet it is still competent to take sasine
INDEX OP MATTERS: xih
Freehold Qualification.
on the precept in that charter, bo as to make np tides by resigna-
tion;
(2.) That a party who is both disponee and heir of line of a
disponer is entitled to be enrolled a freeholder, as heir apparent
of the disponer ; but,
(3.) That part of the lands claimed on, as affording a freehold
qualification, having been omitted in recording the sasine founded
on, the claim is ineffectual, No. 228. p. 383.
4. Freeholders having sustained a claim of restriction made by a
freeholder, and allowed him to retain his place on the roll— Held
that a petition and complaint against this resolution, merely pray-
ing to find that they ' did wrong in allowing the qualification to
* be restricted,' without any prayer to have the party struck off
the roD, was incompetent, No. 269. p. 531.— See Sarine, 1. 2.
Freight. — Held,
(1.) That a ship-owner, by a voluntary landing of goods, to
be placed in a private bonded warehouse, under the Warehousing
Acts, loses bis hen for payment of freight ; and,
(2.) That a delivery ' in docks/ in the meaning of the 4th Geo.
IV. a 24, § 83, whkb reserves the Men for freight, does not ex-
tend to docks of the description of those belonging to the Magi-
strate* of Edinburgh at the port of Leith, No. 297. p. 6W.
Gams Debt.
Bill of suspension passed to try question, whether the onerous holder
of a hill of .exchange is affectable by the circumstance of its hav-
ing been granted in consideration of a game debt, No, 26. p. 40.
Glebe.— See Prescription, 3.
Harbour Dcbs< — Held,
(1.) That steam-boats carrying passengers merely with their
luggage fall within the description of ' passage-boats/ and are
liable to pay rate only as such.
(2.) That they are liable in payment of rates, in consequence of
landing their passengers by means of a boat,' or at a pier erected
by the owners within the limits of the port, although not having
the benefit of the artificial piers belonging thereto, No. 298.
p. 666. and see also No. 299. p. 66a
Hebitabxx Creditor.
1. An heritable creditor in a cognition and sale, having purchased
the house over which bis security extended, and paid up the arrears
of fen-duties, allowed bank interest thereon, No. 101. p. 163.
2. An heritable creditor paving entered into complete and sole pos-
session of the subjects over which his security extended, and hav-
ing charged a factor's fee, held liable in a factor's diligence, and
accountable as such, although the heritable bond declared that
he should not be bound to do diligence against tenants, and should
only be accountable for actual intromissions, No. 212. p. 353.
3. Circumstances in which heritable creditors were held not entitled
to proceed with a sale of the property under their bond, while
they refused to accept payment on granting an assignation to a
third party, No. 324. p. 701.
Burden- — See Sale, 1.
Security.
xiv INDEX OP MATTERS:
Heritable Security.
(1») An heritable bond with a double holding, and infeftment
following, preferred to a prior bond with a public holding, the in-
feftment on which was unconfirmed ; and,
(2.) An heritable bond granted in security of two bills specifi-
cally narrated, not vacated in consequence, of these individual bills
having been retired by subsequent renewals, the debt remaining
undischarged, No. 223. p. 372.
Homologation.
Circumstances under which a plea of homologation was repelled,
No. 440. p. 900.— See Arbitration, 4.
Husband and Wife.
. 1. Bill of suspension passed simpliciter of a charge by a married
woman, without the concurrence of her husband, and for payment
of a sum of money, as to which it was alleged that his jus mariti
was excluded, No. 14fr. p. 242.
2. A party having married the heiress presumptive of an estate" the
entail of which excluded the jus mariti, and having in his contract
of marriage settled certain additional provisions on the children
of the marriage, payable in the event of the succession of her or
the heir of the marriage to this estate, in which event also an ad-
ditional tocher stipulated to him was not to be exigible, and hav-
ing divorced her on the head of adultery, after which the succes-
sion to this estate opened to her — Held,
(1.) That he had no claim to the rents and administration of the
estate, either by law, or by virtue of the contract of marriage.
(2.) That his claim was not made better by his having raised an
action in name of one of his children, a substitute heir of entail,
to set aside the deed excluding the jus mariti, as in contravention
of a prior entail, which, however, contained an exclusion of the
courtesy.
(3.) That he was not entitled to relief of the additional provi-
sions to his children.
4.) That he was not entitled to demand, the additional tocher.
5.) That no claim of damages lay against his divorced wife ;
an<f,
(6.) That it was incompetent for him to conclude against her
for aliment to the children of the marriage, who, with the excep-
tion of one, had attained majority, No. 148. p. 243. -
3. Held that a contract of separation and provision, whereby a hus-1
band bound himself to pay to his wife, during her life and separa-
tion, an annuity of £30, in consideration of which she renounced
all legal claims against him, was not effectual to bar her from
claiming her legal provisions on his death, — the amount not being
fair, onerous, and adequate in the circumstances of the husband,
No/ 157. p. 266.
4. A charge having been given to a married woman on a bill accepted
by her, and the charger having judicially abandoned the charge
against her, and passed from it by a marking on the letters of
horning, a bill of suspension refused, No. 198. p. 333.
5. Held that a woman who has enjoyed the status of a wife, during
the life of a person who she alleged was her husband, is entitled
INDEX OF MATTERS. xv
Husband and Wife.
alter his death to an aliment hoc statu from his representatives,
No. 209. p. 344.
6. Held that a husband .having intimated to an innkeeper that he
would not be responsible for any articles furnished to his wife
after a certain date, was not liable thereafter for any thing fur-
ther than what was necessary for her maintenance according to
his rank and fortune, No. 236. p. 464.
7. A bill of suspension passed simpliciter of a charge given by a mar-
ried woman without the concurrence of her husband, No. 280*p. 549.
6. A married woman, whose husband resided abroad, having drawn
and indorsed a bill which was accepted by the party drawn on,
and the indorsee having brought an action against both the drawer
and her husband, (neither of whom appeared,) and against the
accepter—Held that the indorsee was entitled to pursue the ac-
ceptor ; and that, as decree passed in absence against the drawer
and her husband, the acceptor was bound to pay, No. 307. p< 679*
9. Circumstances under which a lease by a husband to his nephew
and an heir-portkmer was set aside, as in fraudem of an unre-
corded liferent infeftment granted to his wife intuitu matrimonii,
No. 448. p. 903.
Hypothec, Landlord's. — SeeJSaie, 4.— Sequestration, 2.
Implied Obligation.
A father having conveyed his estate to his son by a mortis causa dis-
position, subject to his debts, and a provision to his daughter, for
the payment of which the son was to be personally bound by ac-
ceptance thereof ; and he having accepted and entered to posses-
sion, and intromitted with his father's effects— Held that the son
did not make himself liable to any greater extent than to count
and reckon with the daughter for his intromissions, No. 73. p. 119.
Warrandice. — See Warrandice y 2.
hrmnxTiON.
Court refused to recall, without caution, inhibition used against the
proprietor of an entailed estate, on the dependence of an action
containing alternative conclusions of declarator of marriage, or of
damages for seduction, No. 277* p- 544. — See Process, I. 7.
Insurance.
1. Circumstances in which a shipping place not protected by any arti-
ficial works, was held to be a * porV within the meaning of a po-
licy of insurance, No. 268. p. 625.
2. An insurance having been effected on a vessel, and thereafter re-
newed by a renewal receipt bearing reference to a policy by a
special number ; but no policy having been delivered, contrary to
the usage of insurance offices in the place to send the policies to
the insured— Held, in an action for delivery of a policy in the
terms alleged by the insured to have been those agreed on, and
for recovery of loss, that it was competent to prove the nature of
the risk insured contrary to the terms of the policy, by parole and
circmnstantial evidence ; and that, in an action against a foreign
insurance company and their agent in this country, the pursuers
were entitled to a verdict generally against both the company and
their agent, no evidence having been led by them, in a trial before
a Jury, of the agent having exceeded his powers, No. 462. p. 930.
xv* INDEX OF MATTERS.
Interdict.
Interdict granted to prevent the trustee on a sequestrated estate
using a procuratory of resignation vested in the bankrupt, who had
previously granted to a creditor an heritable bond containing the
usual assignation to the writs and titles, and in virtue of which
- proeuratoiy the trustee was attempting to pass a signature and
charier in Exchequer to out out the heritable creditor, No. 165.
p. 277.— See Church Seat— Rood jfat*f4*-~Sdlnum Fishing, 1.
• Interdiction.
1. Held that a sale of a property by an interdicted party to one of
his interdictors, lor an onerous and rational cause, is effectual,
No. 82. p. 128.
2. Circumstances under which it was held that a* lease granted by a
fiforenter under intes&ction in security of a debty in favour of one
of hie interdictors, and which was consented to by the other in-
terdictors, was liable to be reduced, No. 174. p. 801.
Interest.
1. In an accounting between an agent and his employer, the Court
allowed the balances to be strtrck annually, so<ae to charge com-
r pound interest, and also the interest of an heritable debt retained
in security of certain obligations of warrandice to be annually ac-
cumulated in the same way, No. 112. p. 180.
2. Circumstances in which a party who had purchased an estate bur-
dened with an heritable security, but which was subsequently set
aside, was held liable only in four per - cent interest on the part
oi the price corresponding to the amount of the debt till set aside,
and thereafter in nve per* cent, No. 845. p. 738.— -See Factor
toco Tutor**, \^-Heritable Creditor, l.Smle> ft.
Interest on Bxymsnch ■ 8eo Expense*, Interest on.
Intrinsic or Extrinsic. — See Proof, I. IIL 1/
Joint Obligation.
Circumstances in which a joint obligation to be at the expense of
carrying on certain actions for mutual behoof, was held to be li-
mited to the expense of the actions while conducted by an agent
specially appointed in the agreement, end net-to- extend to the ex-
pense incurred in the actions after the rexnmetatien of that agent,
and the appointment of another, No. 877* p. 797. — See Melmf
Judicial Examination.
* Court refused to allow the holder of a bill to be judicially examined
as to his not being a bona fide onerous indorsee, and' as to his
knowledge of the manner in which it had been obtained from the
acceptor, a minor of facile disposition, on the ground that there
was not sufficient cause of suspicion against him, and that a proof
had been taken, on which- a judgment of the Inner House hod been
pronounced in ins favour, before the examination was craved,
No. 42. p. 54.
i Factor. — See Factor loco 7%fo*iv.
-— ■ fosmoTOR*
A professional person employed in a cause by order ef the Court to
make an inspection, entitled to decree for his account against both
the parties, conjunctly and severally, No. 269. p. 514;
Rxtfir.— See Proof, X.
INDEX OF MATTERS xva
Juratory Caution.
- 1. Juratory.caution in * bill of suspension not received withoiit pro-
duction of title-deed* of suspender's heritable property, which
were in possession of his agent, subject to a right of hypothec,
No. 186. p. 314.
. £. The agent for * bank baring been charged under his bondfor a
balance appearing on a staled account* and a bill of suspension of
that charge , having been passed on juratory caution, the Court
also passed on juratory caution a charge on one of the bills which
formed an item in that stated account, No. 889. p. 813.
Jurisdiction.
1. Held.
(1.) That an agent employed by a trustee on a sequestrated
estate to conduct a process for behoof of the estate, cannot pro-
ceed in a Court in this country against a foreigner who has claimed
on the estate for payment of his business, account of expenses,
without first establishing a jurisdiction by anestment jurisdiction!*
lundandse caust ; .and, .
(2.) That it is competent to an arrestee to plead in a forthcoming
that the decree of constitution obtained by the pursuer against the
foreigner was obtained without so establishing a jurisdiction, No. 0.
p. 8.
2. field competent for the Magistrates of a royal burgh to act as
Judges in a question between their own tacksman of burgh dues,
and a burgess, relative to the payment of these dues, No. 8. p. 14.
3. Held that an arrestment jurisdictionis f undandse causa is effectual
to constitute: a jurisdiction against a native Scotchman domiciled
abroad, in an action at the instance of a Scotchman also residing
abroad, and where the transactions on which the action was
founded arose beyond the territory of the Court, No. 81. p. 127.
4. Circumstances under which it was held, that a petition to a Com*
missary to cause certain effects, alleged to have belonged to a de-
funct, to be delivered to her representatives, or to inventory and
preserve them, was incompetent, No. 126. p. 206. .
4. An adaon in the Court of Session having been compromised, in
consequence of the defender agreeing to pay expenses and a com-
position— Held competent to raise an action on the agreement be-
fore an Inferior Court, No. 240. p. 467.
6. The Court will not interfere with the exercise of the discretionary
powers vested in Commissioners of Police under a local police act,
except in case of excess of power, or deviation from the statute,
, No. 320. p. 711
7- Two debts, each under £26, having been assigned to one person,
without value, for the purpose of rendering it competent to bring
the action in the Court of Session— Held that this was an evasion
of the statute 60th Geo. HI. c. 112, and that the action was in-
competent, No. 368. p. 784.
. S. Part of the cargo of a vessel having been sold by warrant of the
* Judge Admiral, pending the discussion of a process for condemna*
tion as a prise, and the proceeds lodged in a bank on a promissory
note deposited with the Clerk of Court ; and the Judge Admiral
having found that the cargo was not liable to condemnation, and
T0Lrf v. b
xviii INDEX OF MATTERS.
Jurisdiction.
that it must be restored to a certain foreign boose or their attor-
nies ; but no claim having been made for many years, and a sum-
moDB of multiplepoinding having been raised in the Court of Ses-
sion in name of the bankers, by a party pretending right to the
fund, in which there was a conclusion that tab Admiralty Clerks
should be ordained to produce the promissory note, bat which
summons was not executed against them — Held,
11*} That it ought to have been so executed.
2/) That it wae an incompetent process in the Court of Session ;
and*,
(3.) That the Admiralty Clerks were entitled to object to the
competency, No. 42ft. p* 986.
9. Held that it is incompetent for a Sheriff, in a process of commu-
tation of thirlage, to entertain a question as to the existence of a
right of thirlage over certain lands, where it is not constituted by
written title over these lands per expressum, or established by
decree of the Supreme Court, No. 447. p. 011/— See Diligence,
Legal, 3. 4.— ^ Interdict — Poor, 3.
Jury Court. — See Process, IV.
JuSVIOR, ADMINISTRATION OF.
1. A Justice of Peace Depute-clerk for one of the districts of a
county, who was also clerk to the road trustees of the same dis-
trict, having in tjie latter capacity raised in his own name an ac-
tion before the Justices of the Peace of his own district against
two parties, accusing them of evasion of toll, and concluding for
penalties, part of which was payable to himself ; and having con-
ducted the proceedings by his own clerk, who also officiated as
clerk of Court, he himself not having attended personally, and
one of the parties only having been cited, and decree pronounced
against him— Held, in a petition and complaint presented by both
of these parties, without the concourse of the public prosecutor,
(1.) That the party not cited had no title to pursue, but that the
other had.
. (2.) That the clerk had been guilty of malversation is office, and
therefore suspended for one year, and found liable in expenses ;
but,
J 3.} That these expenses were not to be taxed as between agent
client, No. 273. p. 537.
2. Held to be an interference with the administration of justice to
• publish a report of a statement made at a public meeting of road
trustees by their agent, relative to a case depending m Court
against them, No. 91. p. 147.
Justice, Coli^eob or.
Held incompetent for a party claiming right as a member of the
College of Justice to raise an action for a sum under £25, as in-
dorsee of an open account due to a party not having any privilege,
and to whose trustee -he was to be accountable, No. 101. p. .321.
Lawdloab and Tenant.
1. Circumstances under which it was held that a tenant, having fol-
lowed the* course of cultivation pointed out in his lease, was not
liable in -damages for an alleged deterioration of the lands, arising
INDBX OF MATTERS.
Landlord and Tenant.
from the rules of good husbandry not having been observed.
No. 82. p. 4*.
2. Held that a waygoing tenant, bound by his lease sufficiently to
manure bit lands, and consume on them all the fodder except
that of the last crop, was entitled to the value of dang left on
the farm, though made prior to the preceding bear seed-time,
when, m relation to the nature and situation of the farm, it was
inconsistent with good husbandry, and had been hie practice, dur-
ing the preceding years of the lease, to preserve the dung to be
consumed on wheat crops in autumn, No. 129. p. 212.
3. Circumstances in which a party who had taken a piece of waste
ground for one or two years, was entitled, at his removal, to the
materials of certain erections made by him thereomv No. 136.
I* m
4. A tenant under a lease for 38 years, and thereafter daring the
lifetime ' of any person to be condescended upon by him by a
4 writing under his hand,1 held to have validly exercised the power
in favour of his eldest daughter by a nomination in these terms: —
* I do hereby nominate and appoint the heir-male procreated of
* my body, and existing at the expiration of the said 38 years ;
' whom failing, I do nominate and appoint my eldest daughter
' then in life,' No. 272. p. 534.
6. Bill of suspension by a tenant of a charge by an assignee of the
landlord for payment of rent, refused to be passed without cau-
tion, notwithstanding the tenant having raised a msdtiplepomding
as to the rent, in respect that he intended to resist any application
for an order to consign in the multiplepoindmg, on the ground of
bis having certain claims of retention and compensation against
his landlord, No. 282. p. 557.
6. The subrent payable to the principal tenant of a farm is not con-
clusive evidence of the value against the tenant in 8 question of
violent profits, No. 304. p. 676.
7. Held that an action of removing, founded on the irritancy of the
A. S. Dec. 14. 1756, as to being in asrear of two yean rant, is
competent against a tenant possessing under a verbal lease from
year to year, No. 384. p. 80?.
a A tack having been granted to the tenant, ' his heirs, assignees,
c and subtenants,' with warrandice to him and ' his foresaids ;' and
the tenant having subset the farm with absolute warrandice, bat
without any assignation to the warrandice in the principal leaser-
Held, on the principal lease having been reduced, as ultra vires of
the landlord, that the subtenant was entitled to bring an action
of damages against the landlord under the warrandice, No. 464.
p. 935.— See Adjudication, %<-€autioner, 5. 6.—E*4<uly 3^—
Sale, 4. — Sequestration, 2.
Lsoact.
1. Held that a legatee is entitled to decree constituting his legacy
against the executors or trustees of the testator, although it be
provided by the will that, in the event of an insufficiency of funds,
the legacies shall suffer a pro rata diminution, and it has not been
ascertained whether there will be sufficient funds, No. 89. p. 60.
INDEX OF MATTERS.
LSGACY.
2. Circumstances under which it was held that two legacies of the
same amount, in separate deeds, in favour of the same party, were
both due, No. 173. p. 297.
3. A party resident in a Danish West India island, having bequeathed
an annuity to one of his executors in Scotland during his admini-
stration ; .and the executor having appointed an attorney to act for
him, which he did — Held, that although it was alleged that by
the law of that island no one who was not on the spot could act
as executor, yet that the annuity was due, No. 392. p. Q17-.
Legitimation per subsequens MATRiMONiUM^-^See Marriage, 1.
Lib Alibi Pendens.
An action having been raised and carried on in an Inferior Court,
and thereafter an action of the same nature having been brought
before the Court of Session, and the former advocated ob contin-
1 gentiam, a defence of lis alibi sustained, No. 397. p. 825.
Literary Property.
A bookseller having agreed with an author for an edition of a his-
tory to be written by the latter in four volumes, and having ob-
tained subscriptions for all that could fall within his edition — Held
not entitled to prevent the author from publishing a continuation
of the history, which embraced part of the period, and also some
of the matter contained in the last of the four volumes, No. 334.
• . . p. 719.
Mandate.
Circumstances in which the owner of a small vessel held not liable
for furnishings made on the orders of two men employed to navi-
gate her, contrary to his instructions, No. 378. p. 801. — See
Burgh Royal y 1.— -Process, I. 3.
Mandatory.
1. Held that a factor or mandatory is entitled to act until he receives
authentic information of the death of his constituent, No. 58.
p. 86.
2. Held that the mandatory of a defender residing abroad is liable
for expenses, No. 183. p. 810.
8. Held that a mandatory in a process can only be liberated from his
liability for subsequent expenses by entering a minute on the re-
cord, withdrawing from acting as such, No. 366. p. 783. — See
Burgh Royal, 2.
Manse.
1. Circumstances in which the minister of a royal burgh, with a con-
siderable extent of landward parish, was found entitled to a
manse ; — and Observed, that he would have been so entitled under
the act 1663, independently of special circumstances, No. 278.
p. 546.
2. Held,
(1.) That it is competent for a presbytery to order additions to
be built to an old manse, so as to render it suitable for the mini'
ster; and,
(2.) That the heritors are bound, to be at the expense of making
the manse free from damp, No. 449. p. 913.
Manufacturers.— See Sfat. 12. Geo. /. c. 12.
INDBX OF MATTERS. xxi
Marriage.
1. A Scotchman by birth, who inherited a landed property » and suc-
ceeded to an entailed estate in Scotland, but who settled m En-
gland in early life, making occasional visits to Scotland for busi-
ness and amusement, having, after about forty years residence hi
England, had a son by an illicit connexion with an Englishwoman,
and having come four years thereafter to Scotland, accompanied
by the child and the mother, where, after a residence of fifteen
days, he was married to her ; and having remained in Scotland for
about two months, and then returned to England with his wife
and chHd, where they resided till his death — Held, in a declara-
tor of bastardy brought at the instance of the next heir to the en-
tailed estate, that the son was legitimated by the marriage of his
parents, No. 294. p. 605.
2. (I.} Circumstances sufficient to constitute an irregular marriage.
(2.) Held irrelevant as a defence against a declarator of mar-
riage, adherence, and aliment, to allege that the woman had, pre-
viously to her marriage with the defender, had carnal connexion
with his full brother, and had concealed that circumstance from
the defender, No. 339. p. 716^— See Parent and Child y 2.
Contract.
A party having bound himself by his contract of marriage to provide
and secure to the heir of the marriage the whole estates belonging
to him at the time of his death ; and having granted a trust-deed
for payment of debts, and creating a sinking fund, and for other
purposes— Held that the deed was ineffectual against the heir, ex-
cept in relation to the payment of debts, No. 390. p. 826.
Master and Servant.
A written contract of service, not stamped nor tested, having been
entered into by a minor with a party trading under the firm of a
company in which there had been originally several partners, but
of which he was now the sole partner, held that the contract was
binding, No. 203. p. 335. — See Apprentice — Reparation — Stat.
12. Oeo. L c. 12.
Meditations Fuoje Warrant. ^
Held not a sufficient ground for liberating a party incarcerated on a
meditatione fugs warrant', till he should find caution judicio sisti
in any action to be brought against him within six months, that
the creditor had delayed to do so for four months ; but having
alleged that he was merely going out of the country on a periodi-
cal journey in the course of his business, a reservation made to
him to apply to the Judge incarcerator for a re-examination and
investigation as to that matter, No. 169. p. 291.
Messenger. — See Cautioner, 9.
Multiplefoinding. — See Jurisdiction, 8. — Proeese, V.
Mutual Contract.
A party who had entered into a contract with the proprietor of a
steam-engine for a supply of power, but had fallen into arrear of
the stipulated remuneration, and become insolvent, having given
a charge to compel a continuance of the supply of power which
had been withheld by the proprietor of the engine ; the Court,
after allowing him time to find caution, which he failed to do»
Mi INDEX OF MATTERS.
passed 'a bill of suspension by the proprietor simpliciter, No. 166.
p:264.
Naut* Cauponbs Stabularit.
The mate ot a ship belonging to the Clyde having given up his situa-
tion at London, after the vessel's arrival there from her foreign
port, leaving his cheat in the vessel to be conveyed round to the
Clyde with the vessel ; and the master having thereafter sent the
chest on shore, in consequence, as he alleged, of some smuggled
goods having been found in it, and having given it in charge to a
tavern-keeper there without notice to the owner— Held,
(L) That he was responsible for it to the owner, who was not
obliged to accept an order on the person with whom it was depo-
sited; and,
(2.) That the owner's oath in litem, as to the value, was to be
taken%in preference to the opinion of other individuals who had
seen the contents after the master had sent the chest on shore,
No. 300. p. 6*9*
Nobile Opfichjm. •
Court declined to appoint a factor to execute the purposes of a
trusty in room of a trustee who had become insolvent, on the ap-
plication of the truster alone ; but did so on the concurrence of a
party beneficially interested under the trust having been obtained,
No. 170. p. 298.
Non-Entry.
Circumstance* under which an action of non-entry was dismissed,
No. 134. p. 228.
Nuisance.
1. A verdict having been found for a pursuer, in an action for abating
a nuisance, decree pronounced in terms of the libel, No. 260. p. 517.
2. Circumstances under which it was held that a party was not en-
titled to introduce the contents of a common sewer into a mill-
lead, Nov 448. p. 912.
Oath nr Litjbm.— See Nmutm Caupone* Stabularii, (2.)
Oath, Reference to. — See Proof III.
Oath in Supplement. — See Proof r IV.
Parent and Child.
1. Held that a. mother whose husband was dead, and who had mar-
ried again, was entitled to access to her minor daughter by her
first marriage in the custody of her curator ; but that, in the pe-
culiar circumstances of the case, this could only be allowed in
presence of a third party, No. 207. p- 841.
2. Bill of suspension passed simpliciter to try the question, whether,
in the circumstances, the presumption of pater est quern nuptise
demonstrant was redargued, No. 882. p. 71$.
Parish. — See Schoolmaster.
Partnership..
1. No objection to a decree in an action against a company, that it
was pronounced after the sequestration of the company, and the
death of the sole partner, without being transferred against the
creditors or representatives, notice having been given to the former,
who declined to appear, No. 8*. p. 140.
2. It having been stipulated by the original contract of a partner-
INDEX OF MATTERS. xxiii
PARTMfltSHIP.
ship, that the books should be balanced annually on the l£th of
May, and that the representatives of a deceasing partner should
be settled with by a medium struck between the annual balance
prior to his death and the period of it ; and the company having,
by a subsequent resolution, declared that the balance should be
struck annually on the 30th of April, and the balances having
been made accordingly—* Held that the balances so struck could
not be altered, but must be considered as correct, and conclusive
against all concerned, No. 138. p. 221.
3. The manager and partner of a private banking company having
acquired a disposition and assignation to an heritable right as
manager ; and having, after the dissolution of the company, claimed
in virtue thereof in a ranking and sale ; and having been opposed
by the granter of the deed on the ground of its having been ob-
tained usuriously and by fraud ; and the granter having raised an
action of reduction in support of the objections to the claim, and
having directed it against hhu as manager of the company, and
not having called the partners — Held that the summons was irre-
gular,— that he could not be sued as such,— and that process must
be sisted till the other partners were called, No. 234. p. 414.
4. Held that. where a debt is not constituted against a company, all
the partners must be called in an action for constituting it against
the partners, No. 351. p. 747« — See Assignation — Cautioner, 4.
— Master and Servant.
Passive Title.
1. Held that intromission by a tutor before making up inventories,
but which were afterwards made up, did not subject him person-
ally in payment of debts affecting the estate, No. 111. p. 179.
% A widow who had been decerned executrix qua relict, but had
intromited with her husband's effects, &c. without confirmation
or making up inventories, subjected to the passive title of vitious
intromission, No. 187* p- 315.
Pawnbrokers' Act.
The Court passed a bill of suspension and interdict, presented by the
trustee on a bankrupt estate, against the sale of goods iropledged
with a pawnbroker by the bankrupt with the view of defrauding his
creditors, — the money lent on them having been advanced, although
on tickets of £10 each, in sums to a much larger amount on single
pledges, No. 117. p. 192.
Penalty— See Apprentice*
Poinding.
An arresting creditor having raised- a summons of forthcoming, con-
cluding for decree against the arrestee, to which the common debtor
was called ; and decree having been pronounced against the arrestee
and the common debtor for his interest ; and horning having been
raised thereon, and a poinding executed of goods in -the possession of
the common debtor, which were afterwards sold to a third party ;
and decree for their value, having been obtained, by the poinder
against that party, who brought a suspension, on the ground that the
poinding was inept, in respect it was. not competent to poind the
goods on a mere decree of forthcoming against the common debtor
Miv ' INDEX OF MATTERS,
for his interest ; the Court, in the special circumstances, repelled the
objection, No. 24(7. p. 473.
Police. — See Jurisdiction, 6,
Poo*.
1. A merchant burgees, partner of a company carrying on business in a
counting-house within burgh, at which he gives his personal attend-
ance daily for the greater part of the year, hut having bis dwelling-
house with his family in a neighbouring parish, where he is assessed
as a householder for the support of the poor — Held to be an inha-
bitant of the burgh, to the. effect of being liable in his proportion of
the assessment for the poor, No. 230. p. 390.
2. A pauper having been tried for certain acts of theft before the Court
of Justiciary on the indictment of the Crown, and a verdict having
been returned finding him guilty, but that he was subject to fits of
insanity at the time of committing the acts charged, on which verdict
the Court ordained him to be confined in the jail of the head burgh
of the county where the crime was committed — Held that the burden
of maintaining him in jail, and afterwards in a lunatic asylum, till
liberated on a remission, must be borne by the Crown, and not by
the county where the acts were- perpetrated, nor the burgh of impri-
sonment, nor the parish of his settlement, No. 359. p. 767.
3. The heritors and kirk-session of a parish not having taken a claim
for relief into consideration, or given any deliverance thereon— Held,
(1.) That the Sheriff has jurisdiction to ordain them to meet
and consider whether the claimant is entitled to aliment, and that
• he is entitled to allow a proof of the settlement of the pauper, in
order to enable him to determine whether he will so order them to
meet.
12.) That a meeting pending the discussion before the Sheriff, at
'• which the heritors and kirk-session approved of the conduct of the
minister in verbally refusing relief, and resisting the pauper's applica-
tion to the Sheriff, will not alter the case.
(3.) Question raised, but not decided, whether an action by a third
party, who had alimented a pauper, against the parish, is competent
before the Sheriff, No. 456. p. 921.— See Process, I. 6.
Poor's Roll.
A party on the poor's roll cannot be obliged to find caution for ex-
penses ; but Observed, that it is not incompetent to oblige him to
make payment of expenses previously awarded, before allowing him
to proceed with his action, No. 343. p. 7$7.
Possessory Judgment.
1. Circumstances under which a party was found not entitled to a pos-
sessory judgment as to right #f salmon-fishing, No. 144. p. 238.
2. Circumstances under which' a personal title, with seven years pos-
session, was held sufficient to warrant a possessory judgment,
No/ 329. p. 714.
Prescription — 1. Long,
1. Held,
(1.) That a party having possessed an estate on a title from the
Crown for upwards of forty years, had acquired a prescriptive right,
although his title bore that the Crown had right by virtue of the act
of annexation, in which there is an express exception of die right of
tfie Crown to such lands ; and,
INDEX OF MATTERS. xxv
Prescription— I. Long.
(2.) That, in computing the period of forty years, the minority of
an heir-substitute of entail is not to be deducted, No. 44. p. 57.
2. (1.) A vassal being taken bound by a feu-contract to relieve the
superior of the public burdens, under a qualification that the superior
was to pay one fourth part thereof, but which qualification was omit-
ted in the charter granted 20 days thereafter, and the whale burdens
having been paid by the vassals for nearly two centuries— rHeld that
they were not entitled to be relieved by the superior of one fourth
of the burdens. .
(2.) Feu-duties in kind having, during that period, been paid by a
different measure from that stipulated in the charter— Held that the
superior was defended by bona fides against a claim for repetition of
the excess, No. 167. p. 284.
3. The possession by a proprietor of a barony for upwards of 40 years
of a piece of ground, formerly the grass glebe of the minister of the
parish, but situated in the centre of the barony,, under an agreement
by the presbytery to grant a feu, but without any feu having been
granted— Held not sufficient to establish a prescriptive right thereto,
No. 220. p. 367.
4. A proprietor of lands having foued them, and infeftment having been
. taken ; and having thereafter granted to the feuar a disposition of the
lands with two manners of holding ; and titles having been made up,
and the lands possessed thereon for more than 40 years, without re-
ference to the feu-contract— Held that although the property and
superiority had been thus separated, yet a good prescriptive title to
both had been acquired, No. 243. p. 469. %
5. The Court repelled a plea of prescription4 founded on an infeftment
on an adjudication, followed by upwards of 40 years possession, as
against a reduction of a decree of expiry of the legal obtained only
nine years before the action was brought, No. 319. p. 694.
6. Circumstances in which a debt incurred by an heir of entail, prior
to recording the entail, Was kept up against a succeeding heir, not-
withstanding the lapse of 66 years, No. 372. p. 790. .
• II. Triennial.
1. Held that neither the triennial nor the quinquennial prescription is
applicable to a consignment of goods made in security of an advance
of money, and with power to sell in the event of the money not be-
ing repaid within a specific period, No. 125. p. 205.
2. Held that the triennial prescription does not apply to the price of a
bullock alleged to have been purchased for family consumption,
No. 204. p. 33a
• 3. Held that the production, in an action by a defender, of an ac-
count for goods furnished within three years from its date, as a
counter daun against the pursuer, interrupted prescription, No. 349.
• p. 742.
4. Held,
(1.) That cash advances made by a law agent do not fall under the
triennial prescription ; but,
(2.) That his proper business account does, No. 379. p. 802.
III. Quinquennial.
Circumstances under which a plea founded on the quinquennial pre-
scription was repelled, No. 15. p. 2&— - See supra, H. 1.
xxvi INDEX OF MATTERS.
Prescription — IV. Sexennial.
Plea of prescription of bill of exchange barred by letter after six years
importing an acknowledgment, No. 21 9.- p. 367*— See Bill of Ex-
change, 8. — Sequestration, 10.
Principal and Agent.
1. Circumstances in which it was held, that the master of a ship who
had undertaken a consignment of goods to be disposed of at his fo-
. reign port, and who, being unable to get tbem sold during his stay,
had transferred them to a merchant there, with whom the consignee
afterwards corresponded without objection, and by whom the goods
were sold, was still liable to account for the proceeds, No. 97. p. 156.
2. Held that where a party has acted professedly in the capacity of
agent, a petitory action against him, and not against his principal, is
incompetent, No. 138. p. 231. — See Insurance.
Prison.
- Held incompetent to remit to the Lord Ordinary on the Bills during
vacation to declare a prison in the course of erecting legal, No. 434.
p. 894.
Prisoner. — See Poor, 2.
Process.
I. — 1. A reclaiming note which was not marked by a Principal Clerk
within twenty-one days from the date of the interlocutor complained
of, refused as incompetent, No. 2. p. 2.
2. A party having raised, and for a considerable period insisted in an
action of count and reckoning and damages ;• held competent for him
to raise a supplementary summons on exactly the same narrative of
facts, but concluding for damages for certain acts, which, though
narrated in the former summons, did not form the ground of the con-
clusion for damages, £Jb. 34, p. 48.
3. A petition and complaint against an election of Magistrates, in name *
of a member of the Town-Council of the Burgh, having been pre-
sented by one counsel, the Court refused to allow it to be with-
drawn by another counsel holding a written mandate to that effect
from the complainer, before ordering service ; bat appointed it to be
served, reserving all objections, No. 40. p. 52.
4. Circumstances under which a summary complaint against an agent,
for an alleged irregularity in conducting an action, was dismissed,
No. 104. p. 168.
5. Pending the discussion of a defence of no process stated to a petition
and complaint against the election of Magistrates of a royal burgh,
a councillor, not being an original party to the complaint, allowed to
sist himself, to the effect of maintaining that the complaint had been
effectually before the Court within the two months, No. 175. p. 505.
6. A party having raised a summons concluding for reduction of a de-
cree, finding him liable in poor's rates beyond what he was liable for,
/and also for a declarator as to the rule which ought to be, followed
in future; and decree of reduction having been pronounced, the
Court refused to decide on the declaratory conclusion, as .there was
no proper party having interest before them, No. 233. p. 413*
7. A petition for recall of an inhibition on a depending action having
been refused, and thereafter the action having been abandoned, and
. a second petition for recall having been presented, but no extraju-
dicial application having been made, for a discbarge-r-Held,
INDEX OF MATTERS. xxvfi
»
Process.
(1.) Tim such an application should have been made, and there-
fore the expense refused, bat the inhibition recalled of consent ; and,
(2.) That it was incompetent to recall the former judgment, or to*
award the expenses of the first petition, No. 291. p. 602.
8. The bolder of a bill having raised diligence on it, of which a bill of
suspension was refused ; and baring thereafter discovered a defect
in the bill not pleaded in the suspension by the debtor, but which
rendered the execution of the diligence dangerous, and having raised
an ordinary action for payment of the bill, and thereafter a supple-
mentary declarator to nave it found that he was entitled to go on
with his diligence— Held that such declarator was competent, and
that no objection lay to it as creating an undue accumulation of ac-
tions, No. 292. p. 603.
9. Incompetent to remit a cause from one Division of the Court to
another, merely on account of its connexion with a cause which had
formerly depended in that Division, No. 880. p. 80S.
— U. Advocation.
Held,
(1.) That fifteen days having elapsed from the date of an interlo-
. cntor in the Inferior Court, allowing a proof before a bill of advoca-
tion was presented, the bill was incompetent, although it was present-
ed within fifteen days from the time a commission was granted for
taking die proof; and,
(2.) That the limitation in point of time prescribed by the Act of
Sederunt 12th November 1825, as to presenting such bill, is not ultra
of the Court, No. 24. p. 38. No. 455. p. 919.
III. Bill-Chambsb.
1. Circumstances under which a first bill of suspension having been re-
fused, and expenses found due, and a second bill being passed, the
Court refused to recall the finding of expenses relative to the first
bill, No. 31. p. 44.
2. Held incompetent, after a bill has been simpficiter and finally re-
fused without any reservation, to refer the matter to the charger's
oath, No. 94. p. 151.
3. Held incompetent in the Bill-Chamber to grant warrant for inspec-
tion of goods impledged, No. 117. p. 192.
4. Held incompetent, after a bill of suspension has been passed, and the
letters expede, to reclaim against the interlocutor passing the bill,—
the remedy being a petition and complaint to recall the letters, if
they have been irregularly expede, No. 311. p. 684.
5. A party having raised an -action against his law agent, on the ground
of being responsible for an insufficient cautioner being received in
the Bill-Chamber — Held, that as the Bill-Chamber Clerk had an in-
terest in the question, he must be called as a defender, No. 326.
p. 703. — See Juratory Caution.
6. A charger m the Bill-Chamber having omitted to intimate the
lodging of his answers, and an interlocutor prejudicial to the sus-
pender having been pronounced, a remit made to hear the sus-
pender, No. 458. p. 916. — See Appeal, Execution pending —
Cksmo, 2. — Homologation — Jurisdiction, 7.
IV. Jury Court.
Heid not imperative to remit to .the Jury Court an action of damages
xxviii INDEX OF MATTERS.
Process.
for breach of contract, and against which there were defences stated
in point of law, No. 194. p. 528.— See infra, VI. 7.
■ ■ ■ V. MULTIPLEPOINDING.
1. Held,
(1.) That the holder of a fund as trustee for creditors having raised
a multiplepoinding, and called certain parties as creditors of the com-
mon debtor, is not entitled to dispute their title to appear and object
to his condescendence of funds ; and,
(2.) That he is not entitled to deduct from the sum to be consigned
payments made to the debtor for aliment, without authority of the
, creditors, No. 13. p. 21.
2. Held that a party, is not bound to revise his condescendence of a
claim in a multiplepoinding, unless he shall deem that necessary, but
that he ought to make appearance to state this at the enrolment for
closing the record ; and that, if he fail to do so, he is liable in ex-
penses before he .can be reponed against an interlocutor dismiss-
ing his claim, on the ground that it had not been revised, No. 63.
p. 97.
3. The Lord Ordinary having ordained the raisers of a multiplepoind-
ing to consign a certain sum, but having omitted to add the word
4 decerns,' whereby the order could not be enforced ; and it having
become final, and a change of circumstances having taken place-
Held not competent to amend the order by adding that word, and
that the raisers were entitled to lodge a new condescendence of the
fund in medio, No. 182. p. 309.
4. The nominal raiser of a multiplepoinding having allowed decree of
consignation to pass against him in absence, and diligence to be
raised on it, and having brought a suspension, and the charger not
having lodged answers to the reasons — Held,
(I.) That although the charger had failed to do so, yet, in the cir-
cumstances, he was not liable in expenses of process ; but,
(2.) That the raiser was liable in those incurred relative to the
opening up of the decree, No. 221. p. 370.
5. Held that although there was only one arrestment, yet, as there were .
competing interests for a debt, a multiplepoinding was competent,
No. 316. p. 689.
6. The nominal raiser of a multiplepoinding not obliged to consign till
relieved of a cautionary obligation come under by him for the com-
mon debtor to a much greater. amount than the fund in medio,
No. 339. p. 725.
7. A party in whose hands arrestments had , been executed, having
thereafter accepted bills for the fund so arrested in favour of the
common debtor, who indorsed them to a third party aware of the
arrestment ; and the arrestee' having raised a multiplepoinding, and
the arrester having been preferred — Held,
(1.) That the arrestee Was not entitled to the expenses of raising
the multiplepoinding ; and,
(2.) That both he and the indorsee of the bills were liable to the
arrester in expenses, No. 402. p. 836, — See Jurisdiction, 8.
VI. Judicature Act. — (See also infra, VIII. IX. and XI.)
^
1. Objections to a record, as irregularly prepared, No. 47. p. 66.
2. Circumstances under which a record was .objected to as irregular
INDEX OF MATTERS. xxix
Process.
and a remit made to the Lord Osdinary of new to prepare the cause,
No. 70. p. 107.
8. Mamier of making up the record in cases where forgery is proponed.
No. 98. p. 161.
4. Held not necessary, where a reclaiming note, accompanied with the
record, has once been presented, to box a second oppy of the record
along with the subsequent reclaiming notes on other points of the
cause, No. 99. p. 161*
5. Irregular to close a record on mutual memorials) No. 127. p. 208.
6. Incompetent, after the record is closed, to turn an irregular charge
into a libel, No. 234. p. 412.
7. A record baring been closed in relation to certain allegations, and a
remit made to the Jury Court, and it haying been proposed to make
an issue as to a point not in the record ; and this having been ob-
jected to, and the case sent back to the Court of Session to have this
rectified ; and the Lord Ordinary, having allowed a new condescend-
ence on condition of payment of the previous expenses, and the party
baring reclaimed as to this condition, and the. other party having ac-
quiesced ; the Court adhered ; but Observed, that such an order was
incompetent, No. 262. p. 518.
8. Cause remitted to Inferior Court, in respect judgment was pro-
nounced without making up a record ; but expenses refused to com-
plainer, on the ground of his not objecting in tbe Court below,
No. 271. p. 533. • .
9. A party having brought forward a new plea after the record was
closed, allowed to add it, but that only on payment of the whole
previous expenses, No. 352. p. 748.
10. Reclaiming note dismissed, in respect of the record not being at-
tached to it, No. 457. p. 925.
VII. Reduction*
1. In a reduction of a decree in roro relative to tbe right to an estate,
and the titles thereof— Held that the defender may produce the de-
cree, and thereupon found on it as res judicata, and refuse to pro-
duce the titles till the decree is set aside, No. 151. p. 256.
2. Held where the merits in a reduction are greatly mixed up with the
question of title,
(1.) That it is competent to compel the defender to satisfy tbe pro-
duction, reserving his objections to the title ; and, .•
(2.) That the same course may be adopted in regard to an objection
that all the proper parties have not been called, those who have been
called being proper parties, No. 303. p. 672.
' 3. A summons having been raised on toe allegation that the pursuers
had been induced by the defender to enter into a contract by fraud,
and that he had committed a fraud in implementing it, and conclud-
ing for repetition of money advanced on the faith of due imple-
ment, and' for damages—Held not necessary to set aside the con-
tract by a reduction, before insisting in these conclusions,. No. 348.
p. 739.
VIII. Production of Writs.
1. Party reponed against decree of Lord Ordinary, proceeding on fail-
ure to obtemper an order for the production of the original proceed-
ings in a foreign Court, in respect these proceedings wer* now pro-
xxx INDEX OP MATTERS.
Process.
duced ; and Observed, that no Court was entitled to demand pro-
duction of the records of a foreign Court, No. 35. p. 48.
2. Circumstances in which a document not produced with the summons
was held not to be in the pursuer's * custody, or within his power,'
under the meaning of the Judicature Act; No. 118. p. 193.
8. Incompetent, pending an action in the Jury Court, to apply to an
Inferior Judge to obtain production of books to be founded on in the
action, instead of applying by motion to the Jury Court ; and held
to be no ground for being relieved of the expenses of litigation there-
by occasioned, that a party against whom it was brought had re-
turned no answer to several previous extrajudicial applications by
letter and protest, No. 137. p. 229_See Prwtf, IX. &*— Records, 1. 2.
4. A party not entitled to found on documents within his own power,
and not produced till after the record was closed, No. 440. pw 900.
>■ IX. Expenses, &c.
1; Circumstances under which a party who had lodged an irregular
condescendence, was found not liable in expenses, No* 59. p* 91.
2* Held discretionary in the Judge to apply to cases previously in
Court the provision in the Act of Sederunt Nov. 12. 1825, relative
to delaying an award of expenses for the discussion of dilatory de-
fences tiM the end of a causes No. 72. p. 108.
3. Held,
(1.) That h is incompetent, in reviewing die decree of aa Inferior
Court, to allow a proof by commission in the Court of Session, and
that the case must be remitted either to the Jury Court or to the In*
ferior Court ; and,
(2.) That a suspender of such a decree, who had led a proof in the
Inferior Court, and against whom the term had been circumduced, is
liable in payment of the previous expenses, before being allowed an
additional proof of his averments, No.- 128. p. 211.
4. A pursuer having failed to lodge answers to a condescendence, the
defender assoilzied with full expenses, although the latter had been
previously subjected in the greater part of the expenses of process,
No. 190. p. 321.
6. Held competent for the Lord Ordinary, after the time for lodging a
revised condescendence has been prorogated, to order the former
papers to be withdrawn, and a new condescendence to be given in,
and to allow additional time for doing so, with a view to putting the
case in proper shape, No* 205. p. 339.1— See ntpra, IL 1. 2.
— — X. vmrnu Smuwtratioh Statute.
1. Held,
(1.) That an interlocutor of a Lord Ordinary, daring vacation, in*
sequestration, is not final, but is reviewable by the Ianer-House.
(2.) That it is competent for the trustee on a sequestrated estate to
apply by summary petition to the Court of Session for warrant to
examine parsons connected with the business of the bankrapt*
(8.) That the partners in trade of the bankrupt (though not in the
business in respect of which he was sequestrated) fall within the mean-
ing of the Bankrupt Statute as persons connected with his business,
and that they cannot escape examination by a dissolution of the
partnership subsequent to the bankruptcy*, though prior to the se-
questration ; and,
INDEX OF MATTERS. . xxxi
Process.
' (4.) That the trustee is not obliged to prepare interrogatories to be
communicated to the parties prior to examination, No, 386. p. 809.
2. Where there is opposition to a petition for approval of composition
and discharge, the Court will not remit it to be determined by the
Lord Oniinary on the Bills daring vacation, No. 461. p. 929 — See
— ^— XI. Summons.
1. Held that there being evidence of a summons baring been called, it
was to be presumed, after the lapse of a long period of time, that it
had been duly executed, No. 146. p. 240.
2. Held that privileged summonses against defenders in Orkney must
proceed on indudm of 40 days, Mo. 162. p. 273.
S. Objection to an execution repelled, that it did not contain the de-
signations of the parties, or mention the date of the summons, it
• being written on a blank sheet originally stitched to* the summons,
and bearing reference to the foregoing summons, No. 199. p. 334.
4. A party baling brought an action concluding for delivery of a bill
bearing to be indorsed by him, but which be alleged he had given
to the defender without value for a special purpose; and having
thereafter averted that hie name was, forged, but there being no
such allegation in his summons, a proof of it was refused, New 458.
p. 926V— See Tide to Sue, Sp. 4.
5. Circumstances in which an amendment of a- libel* was admitted,
without subjecting the party in any previous expenses, No. 426.
p.683.
Process-Caption.
Circumstances under which the Court, after the lapse of twenty years,
refused to issue a process-caption at the instance of a private party
against an agent, to recover title-deeds produced in aptocesa, and for
which has receipt stood, No. \. p. 1.
Proof.— I. Qualified Admission.
Held that a qualified admission must be taken as it stands, as a piece
of evidence along with the rest ef the proof; but that it is compe-
tent to redargue by contrary evidence the qualification , adjected,
No. 350. p. 744.— See Bidi if Exchange, 7.
— II* By Commission.
In a declarator of legitimacy, in which a proof was granted of the mar-
riage of the parents—Held competent to take it en commission, in
respect of the poverty of the pursuer, and the necessity of the case,
No. 263. p. 619.— See Prvceu, IX. 8^-cn/ro, VII. 2.
— — III. Reference to Oath.
1. Held that an allegation that a bill had been granted in fulfilment ef
a promise to pay a tocher, was extrinsic, and no other value being
alleged, that the bill was not onerous, No. 77. p. 116.
2. Two obligante on a bill having brought suspensions of separate
charges, on the ground that an admitted payment by one of them
was to account of the bill ; and the charger having, on a reference
by the one who had made the payment, deponed that it was not to
acosunt of the bill ; the Court, in the suspension at the instance of
the other obhgant, refused to allow him to prove that the payment
was to account of the bill, to the effect of getting rid of expenses in
which they found him liable, No. 142. p. 296.
tanii . INDEX OF MATTERS.
»
PROOf.
• S. A party having referred to the oath of his opponent merely whether*
he was an onerous assignee, and he having deponed that he was —
Held not competent to inquire whether he was a bona fide assignee,
No. 206. p. 348.
4. Oath on reference by a managing partner of a company that, ' to the
' best of his knowledge, a customer had paid all the articles famished
' to him, and that all the furnishings were entered in the company's
* books, although an error may have occurred' — Held not exclusive
of a claim for the price of furnishings proved to have* been delivered,
but omitted to have been charged in the books, No. 245. p. 472.
5. Reference as to resting owing of a bill of exchange to the oath of
trustees of fc party deceased allowed, reserving all objections to the
effect of the oath when taken, No. 259. p. 5 15.
■ . , IV. Oath in Supplement.
1. Circumstances under which it was held, that the payment of a sum of
. money by a married man to a woman who charged him -with being
the father of her bastard child, in consideration of receiving from her
a declaration that he was not so, constituted a semiplena probatio,
and entitled her to her oath in supplement, No. 116. p. 189.
2. Circumstances held not sufficient to amount to a semiplena probatfo
in an action of filiation, No. 313. p. 685.
V. Oath in Litem. — See Nautce Caupone* StabulariL
- VI. Parole.
4fci
Proof allowed before answer in a question with an onerous purchaser
to explain a charter, containing more than one description of the
property conveyed, alleged to be contradictory, No. 73. p. 109. — See1
Insurance, 2.
i. VIL Proof to lib in Retentis.
*+
1. An examination of instrumentaiy witnesses, allowed, in initio litis,
to lie in retentis, relative to the state of mind of the granter of deeds
under reduction on the head of .facility, although it was .not alleged
that they were of an advanced age, or in danger of their, lives, 'but
being the only witnesses alive who were present at the execution of
the deeds, No. 160. p. 272. •
2* Warrant to take deposition of witnesses to lie in retentis Routed to
those who were seventy years of age and upwards, or in infirm health,
and commission refused to be granted generally ' to any of his Ma-
' jetty's Justices of the Peace' of a county, No. 436. p. 896.
8. Warrant granted to take the depositions of witnesses, to lie in re-
tentis, who were seventy years old and upwards, in danger of life, or
about to leave the country, No. 450. p. 915.,
VIII. Witness.
1. Held,
(1.) That a witness is admissible to prove a statement by the de-
fenders' agent now dead to the husband of the witness, also now
dead, and by him to the witness ; and,
(2.) That her deposition having been taken and sealed up, it is in-
. competent, before determining as to her admissibility, to allow her
deposition to be opened, in. order to ascertain whether the;agent's
statement was an admission on the part of the defenders, or merely a
narrative of what he kadvheard them say; No. 64. p. 98.
2. Held that a party, who had allowed a witness to be* examined without
INDEX OF MATTERS. xxxiii
Proof.
objection, was not afterwards entitled to allege that be had an in-
terest m the cause, and so was incompetent, — he being aware of the
objection at the time of the examination, No. 374. p. 794.
IX.WK1T.
1. Held that private books kept by a partner, containing among nu-
merous other entries; memoranda relative to the affairs of the com-
pany, but which it did* not appear had ever been seen by the other
- partner, could not be admitted as evidence against the representatives
of the one partner in an accounting at the instance of the executrix
of the other, No. 81. p. 32.
2. Incompetent to hold copies of a summons and interlocutors which
had. been lost equivalent to the originals, except by consent of both
parties, No. 55. p. 77.
3. Held not competent to insist for production of private plans belong-
ing to one of tne parties in % cause in modum probationis, No. 196.
p. ass.
4. Held that warrants are the only proper evidence of alleged oppres-
sive judicial proceedings and imprisonment, No* 400. p. 831.— See
Cautioner, 5-— Insurance, 2^-svpra, VL— Records, 1. 2— Tenor,
Proving of.
X. Judicial Remit.
1. After a remit of consent to a person of skill, the Court wiD not
allow any other mode of proof, or remit of new to other persons;
nor wifl they require the person to whom the remit bas been made
to reconsider his report, except on pointed and specific allegations
of error, or where ne has neglected to obey the directions of the
♦ remit, No. 10. p. 19.
2. Circumstances in which a report by persons of skill, on a remit
before answer, xwas held.not to bar the parties from resorting to other
proof, No. 305. p. 677.
' 3. Held, in special circumstances, that a tenant whose* lease had been
reduced as uhrm vires of the grantor, and who, in his condescend-
ence in an action of damages against the grantor's executors, had
agreed to estimate the damages according to a valuation made on a
judicial remit by two persons of skill, was entitled to enlarge his
claim in a revised condescendence) No. 306. p. 678.
Property.
1. Held that a singular successor of a feu, of which the Magistrates of
Edinburgh were superiors, could not be affected by conditions con-
tained in acts of Council, but which were not introduced into the
titles, nor referred to, No. 119. p. 195.
2. Under a police act allowing the commissioners of police to line
buildings in streets for the benefit of the public, neighbouring pro-
prietors'are not entitled to insist that a party who has pulled down
his house shall, in erecting a new one, line back his wall, so as to
widen the street, No. 135. p. 224^— See Burgh Royal, l^-JZenor-
atkm, 1. 2.
Profirty-Tax.
Held that interest having been paid for a series of years, during the
period when the property-tax statute was in force, without deducting
that tax, it is not competent to withhold payment of a balance to
tint extent, — the debt on which the interest arose being originally a
VOL. V. c
Tipdv INDEX OF MATTERS.
West India debt, and being payable in London, and it appearing
that no such relief would be allowed in England, or at least that the
party must go to the Courts there to seek such relief, Nq« 21,1. p* 348. *
Provisions to Children.
1. Circumstances in which it was found,
(1.) That a younger son haying obtained a bond of provision from
bis father, was preferable, in virtue of a power under a contract of
• marriage, to his elder brother, who. had. ratified the bond ; and,
(2.) That money advanced by the father for the support of the
younger son was not to be imputed in extinction of the bond, No, 322.
p. 696.
2. The maxim, debitor non presumitur donare, held not to apply to
the caBe of a father settling provisions on bis children to an epttent
greater than he was bound to do by his contract of marriage, No, 372.
p. 790.
Records. $
1. Court remitted to the Depute Clerk Register to take steps for re-
, storing a mutilated deed, No. 200. p. 334.
2. Warrant refused for transmitting an extracted process, .to. be pro-
duced in one depending, in respect of the facility of obtaining certi-
fied excerpts, No. 275. p. 543.
Reduction. — See Process, VII.
Relief. #
An action which had been brought by an agent qf one of three parties,
for repayment from them all of certain advances for which they, were
liable, sisted, so far as the amount of one of the shares was disputed,
till the relative proportion of each should be determined in a, process
of relief pending between the co-obligants themselves, No* 147.
p. 242 — See Bill of Exchange, 8.— Trust, 1.
Remuneration— See Coal
Reparation.
lt Tbe proprietors of feuing ground, who. had originally formed a
common sewer for the use of the bouses, to be built on the grpund
feued out by them, having allowed a greater quantity of seyrage
water to be conveyed into the sewer than, it could adequately carry
off, held liable in reparation of cjajnages thereby occasioned,. No. 61.
p. 94.
2. A party having opposed an -application to the Dean of Guild for
) leave to erect certain buildings, and having been successful in his
opposition ; but having made* no appearance in the House of Lords,
and not having intimated that he was not to oppose the appeal —
Held, on the judgment being reversed, that his conduct up to the
date of the appeal was not relevant, to subject him ip a claim of
damages ; but the cause remitted, quoad ultra, to the Jury Court,
No. 102. p. 164.
3. Held: not necessary to libel malice in an action of damages against
Magistrates for wrongous imprisonment and oppression, and founded
on alleged irregularities, No. 105. p. 170. — See Agmtand Client,
2. 5^-Slander.
Repetition.
Circumstances under tyhich it was held that a person who had pur-
chased lauds, in. the titles of which there was. a^cjause intended to
give a right of pre-emption to .the superior, ajid.who, in order, to get
INDEX OF MATTERS. xnxr
- an entry, paid the superior a sum of money to pass from that right,
was not entitled to repetition from the seller, No. 163. p, 274.
Res Judicata.
The holder of a biU having been assoilzied from an action concluding
for restitution of it, on the ground of having obtained it without
value, and in collusion with bankrupts to defraud their creditors,
entitled to plead res judicata against an action of reduction on the
same ground*, and containingtbe same conclusions, No. 127. p. 208.
— See Burgh Royal, S^-Decree in Foro— Entail, 1— Title to
Ebi ItfTBRVSNTOS. — See Cautioner, 5.
Right, Absoluts or Revocable.
A father having sold a piece of land, and taken the purchaser bound
to grant a bond in favour of himself in liferent, for bis liferent use
aflenarly, and of his sons in fee, and having caused his sons to sign
a postscript to the missive, agreeing not to call up the money for
eight years certain ; but no bond having been delivered on the one
hand, or disposition on the other, held that the fee of the price was
absolutely vested in the sons, and could not be revoked by the father,
No* 9. p. 17.
River. — See Nuisance.
Road.
1« Held that a road on which there were two flights of stairs, was not
a hone and carriage road, but only a footpath, No. 43. p. 56.
2. The use of a road, chiefly for the purposes of recreation, having been
enjoyed by the public beyond the memory of man,, and antecedent
. to aU interruption — Held that subsequent interruptions, which did
. not prevent the use and enjoyment of the road, were not sufficient
to deprive the public of their right, No. 454. p. 917— See Title to
Sue, Sfc. 7. 10.
Road Acts.
- 1. Road trustees having right to manage, Ac. a road from a certain
point to ' the city of Glasgow,' held entitled to maintain toll-bars
within the bounds of the royalty, if beyond the buildingB constituting
die actual city, No. 84. p. 135.
2. Held that an exemption from payment of toll in a local road act, was
not derogated from or repealed by a general exemption of a more
limited nature, introduced into the subsequent general road act, but
which was not inconsistent with the .exemption in the local act,
No. 274. p. 541.
S. An original subscriber to a road not entitled to attach the rents of
toll-bars while there was no surplus, after applying them to the pur-
poses provided by the acts of Parliament, and the payment of the in-
terest of money borrowed on the security of the tolls, No. 423. p. 878.
4. Interdict granted against road trustees quarrying stones, pending a
discussion as to their right to do so under certain local statutes of
which they had the benefit, notwithstanding the provisions of the
general road act ; and Observed as to that statute, that its effect is
to ride over all turnpike statutes, which are to be read as if it were
engrossed in them, rlo. 427. p. 884.
5* Proprietors of a canal not entitled by themselves or others to use
the towing-path as a road for carriages or carts conveying passengers
who had come by their boats, so as to avoid going along a turnpike
INDEX OF MATTERS.
road on which they must have paid toll, the Road Act prohibiting
the use of any private passage or way whereby the payment- of toll
might be avoided, No. 446. p. 909.
OALE.
1. Heritable subjects burdened with debt having been exposed to sale
under articles of roup, on the narrative that they were consented to
by the creditor, and on the condition that, before payment of the
price, an assignation to the debt was to be granted ; but not being
assigned by him, and the purchaser having paid the price to the ex-
poser without obtaining an assignation — Held, that although the cre-
ditor attended and offered at the sale, the debt still remained a bur-
den on the property, No. 152. p. 259.
' 2. The seller of an heritable property is' bound to make up a valid
title at his own expense, unless the purchaser baa explicitly con-
sented to take the title as it stands in the person of the seller,
No. 206. p. 340.
- 3. Circumstances under which a merchant to whom goods had been
sent as having 'been purchased by him, but which he alleged had
■ been bought by another party, and not having sent notice of the al-
leged mistake debito tempore, was held liable to -pay the price,
No. 217. p. 361.
4 Questions raised, but not decided,
. (1.) Whether delivery of part of a machine which a manufacturer
was employed to make, and for which a bill was granted, transferred
the property of the part ; and,
(2.) Whether (supposing it did not) the landlord had a hypothec over
it for his rent of the mill in which it was placed, No. 254. p. 507.
• 5. A party having bought certain goods, and, after an action had been
brought for payment, having returned part of them to the trustee on
the seller's sequestrated estate, to be sold by bim— Held that the
onus of proving a condition that the price effeiring to the goods- so*
returned was to be considered as thereby discharged, lay on the pur-
chaser, No. 312. p. 685.
* 6. Found, •
(1.) That an offer of a price for lands necessarily includes an offer of
■ interest on the price from the date of possession ; and,
(2.) That under a local act authorizing a compulsory sale of lands to be
valued by a Jury, if the proprietor should not accept the sum offered
as price and for damages, and declaring that the expense of the trial
should be borne by the proprietor or the other party, according as
the offer was greater or less than the price and damage found by the
Jury, the offer and the. verdict not being capable of comparison, the
provisions of the statute do not apply, No. 358* p. 764.— See JRepe-
tition.
Salmon-Fishing.
1. Bill of suspension passed, and interdict granted, as to fishing ' by
' any other mode than the ordinary way of net and coble/ No. 95.
p. 153.
' 2. The estates of a family united into an earldom, the titles to which
included a certain salmon- fishing within specified limits, having been
forfeited to the Crown for accession to toe rebellion in 1715 ; and
having been afterwards purchased (under certain specified exceptions)
from the Parliamentary Commissioners by a party who afterwards
INDEX OF MATTERS. xxxni
Salmon-Fishing.
transferred them to the attainted family ; but the conveyances con-
taining merely a general right of salmon-fishing belonging to the
earldom, and not mentioning the special right as contained in the
ancient investitures Held that the family had a sufficient title to
pursue a declarator of their exclusive right to this fishing, No. 363.
p. 776.
Sasine.
1. It is not a sufficient objection to an instrument of sasine written up-
on the face of a single page, that the notary's docquet bore it to be
written ' super hanc et duas precedents paginas,' No. 93. p. 150.
2. A party claiming to be enrolled as a freeholder, having founded on
a charter from Geo. III. to A., and a disposition and assignation by
A. to the claimant in liferent, and to A. and his heirs and assignees
in fee ; and having produced an instrument of sasine in which the
only Sovereign named was Geo. IV., and in which it was stated that
the attorney held a charter by which ' diet. S. D. N.' had conveyed
the lands to A., and also a disposition and assignation by which A. had
disponed the lands to the claimant in liferent, and to the heirs and
assignees of A. in fee— Held that as there was satisfactory evidence
on the face of the instrument to identify the charter and disposition
there recited with those founded on, the blunders were not material,
and that the claimant was entitled to be enrolled, No. 281. p. 550*
S. Held in a question relative to a freehold qualification, that part of
the name of one of the parcels of lands enumerated in the sasine
founded on having been written in all the material parts on erasures,
the -aaaine ' was null and void/ No. 283. p. 559.
4.' Circumstances under which various alleged irregularities committed
in framing an heritable bond and sasine were repelled, No. 355.
p. 758_ See Frtehold Qualification, (3.)
Schoolmaster.
Circumstances in which an heritor was found liable iu payment of ar-
rears of schoolmaster's salary for eleven years, notwithstanding his
having paid salary for the same lands in another parish during that
period, and for upwards of a century before, No. 1 15. p. 185.
SlQUESTRATION.
l.Heid,
(I.) That it is not a valid objection to a candidate for the office of
trustee on' a sequestrated estate, that his partner in business is trus-
tee on the estate of a party against whom it is alleged claims exist,
and that he is cautioner for his partner; and,
(2.) That it is a good personal objection agaihBt a candidate for the
office that he resides in Edinburgh, and that the sequestrated estate
k in Glasgow, No. 51. p. 72.
2. The creditors of a tenant sequestrated under the Bankrupt Act hav-
ing agreed that the landlord shduld have a preference over the pro-
ceeds of the effects hypothecated to him for bis rent on allowing
them to dispose of them, and it being alleged that sufficient funds
had been realised, but had been paid away by the trustee— Held
' that it was competent to enforce such a claim by a summary com-
* plaint, sad that the successor of a trustee is liable for the obligations
of his predecessor ; but a remit made to ascertain the fact whether
there were free proceeds, No. 83. p. 131.
xxxriii INDEX OF MATTERS;
Sequestration.
S. Held that a trustee on a sequestrated estate, who sists himself as
pursuer of an action in place of the bankrupt, is liable to make funds
forthcoming in the event of the defender being found, entitled to ex-
penses ; and that it is not relevant to allege that the funds -of the
estate are exhausted, No. 106. p. 172.
4. A person who had been allowed by the creditors to enter into pos-
session of a sequestrated bankrupt's estate as interim factor, without
.finding caution, ordained, pending a competition for the office, of
trustee, to find caution ; and ordered that, on bis .failure £0 <Jo so,
the management should devolve on the Sheriff-clerk of the county,
No. 108. p. 174.
5. Authority refused to make up a new sederunt-book in place of the
original, which had been lost ; but warrant granted for re-examina-
tion of the bankrupt, No* 141. p. 235.
6. A discharge on a composition granted to the sole constituent mem-
bers of a company under sequestration, both as partners and indivi-
duals, in respect of no 'objection, and the sequestration at the same
time declared to remain effectual as to the company and its effects,
No. 214. p. 357.
7. Held incompetent to enter into objections to awarding sequestration,
other than that the applicant is not within the description of persons
described by the statute, or that the concurrence is not such as the
statute requires,— other objections forming merely a ground for re-
call, No. 241. p. 468.
8. In the election of a trustee, held no objection to the vote of a cre-
ditor, founded on bills accepted jointly by the bankrupt and .another
individual, that he had not valued and deducted that individual's se-
curity, the bankrupt being in fact the primary obligant, and liable to
relieve the other, though net appearing so -ex facie of the bills,
: No. 242. p. 468.
9. A sequestrated bankrupt having been discharged on a composition
by a judgment declaring him discharged ' upon' payment of toe com-
position, and having been sequestrated a second time* when * part
only of the composition had been paidr-Held,
(1.) That the discharge muskbe interpreted as if it bad been in
terms of the Bankrupt Statute, ' except as to payment of the cemno-
' sition ;' and, -
(2.) That under the statute the debts of creditors under the first
sequestration were extinguished except the composition, uh) did not
revive by the failure to pay the composition, but could rank in the
second only for the balance of the composition remaining unpaid.
No. 288. p. 565.
10. (1.) Held that the production of a bill in the hands of the prases of
a meeting of creditors for the election of a trustee on the sequestrated
estate of one of several co-acceptors, is not such a production under
section 52d of the Bankrupt Statute as is equivalent to an action,
and sufficient to save the bill from prescription as against the- other
acceptors ; and Observed unanimously,
(2.) That the effect of a production in terms of the statute in a sub-
sisting sequestration would not be done away by a subsequent re-
call, as improperly awarded, No. 327. p. 705.
. An agent in a sequestration held not responsible for neglect in the
index of Matters. nxk
Sequestration. • '
jksrfbranaace of da ties proper t*> the amistee ; ami Observed* that the
agent could not be in any shape Tewgmsed by the Cam* at an offi-
cer hi tbe eequestiaajon, N*. 381. p. 804.
13. A meeting of creditors ordered to receive rim resignatieb at the
trustee on a baoferapt eatate. Observed, that a trastee daunt enti-
tled to reject daimii dory recetv ed, en makingup iris report as to the
concurrence in an offer of composition, No. 8B8. p. 82ft.
IS. Held that a creditor claiming on the estate of a oattaet of a com-
. paavy lor a debt dae by the company, mttat value via claim against
the other partner*, and deduct it, otherwise he is'aot entitled to
vote, No. 485. p. £96.
14. The creditora of a bankrupt under sequestration baring resolved
that his eatate should be exposed to sale ; and this having become
final, and the trustee having advertised a sale, and the bankrupt hav-
ing presented a petition praying to prohibit it — Held,
(L) That it was competent to order 'the petition to be answered,
alttwogh the sale waa thereby suspended ; but,
(8^ That on the merits it ougbtto be rerosed, No. 488. p. 899.
15. An offer of composition refused as not reasooable*---<tuestioh raised,
whether me claim of a creditor made on die estate of a bankrupt,
after a petition for approval of a composition, can be taken into cal-
culation in ascertaining whether the bankrupt has the requisite coa-
cmmiiee, No. 485. p. 896— See Apmi and CUmt> 3— Ontfiswr,
8. o*—MfntpBMM8) 3.*^.rTmjssa, X.
Servitude. '
Under a reserved right to coal, with the privilege of transporting, Ac.
and doing every thing necessary thereaneot, the patty fa right of
t be coal is net entitled to take materials ant «f the lands tor the'pur-
poae of forming the roads required f of the trtms^ortaiAsv* -of the <coal,
No. 178. p. 307,— See Road, 1.2.
Settled Account.
Held that it is net competent, after a regular settlement of accounte
and a species of transaction, to open them up te the effect of review*
ing the principles on which the settlement has been made, No. 811.
p. 348.
Sheriff. — See Jurisdiction, 9.~-fW, 91
Sheriff-Clerk.
Sheriff-Clerks not precluded by statute 6th Gee. IV. from appointing
deputies in drcamatavjces where that is necessary for eondactmglhe
business, No. 858. p. 503.
Sheriff-Clerk's Fees.
1. Repetition ordered of overcharges of Sberih^QeTks tea not sane-
tinned by A. S. Mart* M. 1748; bat,
8» TtinHiin rerened, fat respect *f the party net having applied 1a the
ant instance to the Shorn?; and of his having concluded for removal
m tetmsura of the Clerk, as as which he bad no thve, No. 113. p. 183.
Slaitder.
1. (L) A party held liable in damages mr defamatory statements
made maU tiie, and net pertineat m the coarse of judicial proceed-
ings.
(8.) A sum of damages awarded in ifee Inferior Ceort modified
INDEX OP MATTERS.
Title to Sue or be Sued.
before the Dean of Guild for authority to build, entitled to make
appearance, and plead defences, No* 119. p. 195.
6. Circumstances under which it was held that the tutor of a pupil was
entitled to pursue a reduction of a lease, although inventories had sot
been made up, No. 174w p. 301.
7. An action of reduction of a. decree of the. Justices of the Peace, or-
dering a road to be shut up, and of declarator of right to it having
been brought, among others, by several parties, describing themselves
as* servants^-Held that unless they were' householders they had no
tide to pursue, No* 195. p. 330.
8. A member of a Board of Commissioners, elected under authority of
an act of Parliament, is entitled to pursue a reduction of an act done
by the Board, on the ground of its having been carried by the votes
of two Commissioners who were disqualified, without his being
obliged to conclude for reduction of die appointment or commission
in virtue of which these persons acted, No. 213. p. 355.
9.. The Court sustained a libel and charge directed against an Insurance
Company not incorporated by charter, and against the manager and
certain individual directors who bad subscribed the policy of insur-
ance on which the action was brought, No. 226* p. 375.
. 10. Action for the removal of obstructions erected across a road, alleged
to be a public road, sustained at the instance of two proprietors in
the parish designing themselves by their estates, and as * two and a
' committee of the trustees for the parish, &c under the Statute
' Labour Act for the county,' &c No. 227. p. 381.— See Burgh
BoyaU 2.— Justice, Administration qf> 1. — Partnership, 1. 3. 4-—
Principal and Agent, 2. — Tutors and Curators, 2.
Tbust.
. 1. Certain persona holding an entailed estate in trust, under condition
that they should only denude in favour of the heir when the whole
debts affecting the estate were extinguished, and having denuded
while certain debts remained unpaid, to. answer which, however,
they stated that they had retained funds-— Held, on these debts be-
ing demanded from a succeeding heir, that be was entitled to decree
in an action of relief, not only against the trustees, but also against
the representative of the heir in whose favour they had denuded,
and who bad granted them a discharge, No. 68* p. 104.
2. An acceding creditor to a voluntary trust, under which the trustee
had entered into possession of the estate, having obtained from the
bankrupt a quantity of grain and sold it— Held not entitled to set off
the price against his debt, or retain it in payment of his dividend,
but bound, in an action at the instance of the trustee^ to consign the
whole amount, without deduction of part which he had failed to re-
cover, or of payments made to the bankrupt without authority of
the trustee, No. 79. p. 122.
3* A creditor of a trust-estate, under a voluntary trust, bavins succeeded
in a litigation with the creditors of the truster in establishing his
claim against the, trust-estate— Held that, in accounting with him,
. the trustee was. not entitled to deduct the eipenses of the litigation,
No. 122. p, 203.
4. Circumstances. under which it was held that testamentary trustees,
who were required by the. testator to invest the residue. of bis funds
INDEX OF MATTERS. xl
•
Tehor, Proving of.
' L Ciifimttmcrt in which die Court decerned hi a proving of the tenor
of a written cautionary obligation, although there was no proof of
• any special casus amissionis, No. 249. p. 497.
• 2. Circumstances ia which, by consent' of parties, the proving of the
tenor of a bond was dispensed. with, and in -which the Court found
its import sufficiently instructed by written documents recovered un-
der a diligence, and parole proof taken on commission, No. 401.
p. 881.
3. Circumstances in which a proving of the tenor of a deed was allowed
to proceed, although there were no adminicles expressive of its. pre-
cise terms, No, 460. p. 927.
Testamxmt.
A party who had made a testament in America, disposing of all his
property, having thereafter come to Scotland, and executed a mortis
causa assignation of the stocking of a farm there, and having subse-
quently recalled that assignation, and declared that the farm-stocking
* should be considered as part of his executry, and be regulated by
' the general law of moveables in its appropriation,' but not having '
revoked his testament— Held that the form stocking fell to be distri-
buted under the testament, and did not go to the nearest of kin ac-
cording to the law of Scotland as to intestate succession, No. 346.
p. 734*—See Trust, 4. 7. 9.
TvtiM. to Sec on-BT Suid.
1. Held, that in order to entitle ovparty to insist in an action of reduc-
tion of a conveyance or transfer of money by a sequestrated bank-
rupt, as assignee of the creditors, he must have an assignation to that
special effect. No. 7. p. 11.
2. Probate of a will and letters of administration taken out from an
English Prerogative Court by the survivor of three executors nomi-
nated m an English will, held a sufficient title to pursue in a Scotch
Court, although the executor had no residuary interest under the
wttV~he always confirming before extract, No. 19. p. 29.
3. Circumstances in which it was held that a party founding on an un-
stamped and improbative document of debt alleged to have been ob-
tained by fraud, and who had been called in a process of multiple*
poinding, was entitled to pursue a reduction of a decree of prefer-
ence in his absence, and that such decree did not form a res judicata,
No. 22. p. 34.
4. A party, by deed of settlement, left heritable property to bis widow,
railing whom, to substitutes. The widow, after having been infeft,
• executed a conveyance mortis causa to the exclusion of these substi-
tutes, who brought a reduction of her settlement ex capita lecti, de-
scribing themselves as heirs of provision to the original granter, but
narrating bis deed of settlement, whereby their true characters as
heirs of provision to the widow appeared— Held,
(1.) That so libelling themselves, the summons was inept to sup-
port a conclusion of reduction, ex capite lecti.
(2.) That a supplementary summons was incompetent; and,
(3.) That the objection was one which could not be waived by the
parties having gone to issue without stating it ; but right to bring a
new action in the proper character reserved, No. 60. p. 92.
> 5* The City Chamberlain having been called as a party to a process
alii INDEX OP MATTERS.
Title to Sue or be Sued.
before the Dean of GuHd for authority to build, entitled to make
appearance, and [dead defences, No* 119. p« 195.
6. Circumstances under which it was held that the tutor of a pupil was
entitled to pursue a reduction of a lease, although inventories bad not
been made up, No. 174. p. SOI.
7. An action of reduction of a decree of the! Justices of the Peace, or-
. dering a road to be shut up, and of declarator of right to it having
been brought, among others, by several parties, describing themselves
as servarite-i-Held that unless they were* householders they had no
tule to pursue, No. 195* p. 330.
,8. A member of a Board of Commissioners, elected under authority of
an act of Parliament, is entitled to pursue a reduction of an act done
by the Board, on the ground of its having been carried by the votes
of two Commissioners who were disqualified, without his being
obliged to conclude for reduction of the appointment or commission
in virtue of which these persons acted, No. 213. p. 355. .
9.. The Court sustained a libel and charge directed against an Insurance
Company not incorporated by charter, and against the manager and
certain individual directors who bad subscribed the poKcy of insur-
ance on which the action was brought, No. 226* pi 375.
. 10. Action for the removal of obstructions erected across a road, alleged
to be a public road, sustained at the instance of two proprietors in
the parish designing themselves by their estates, and as * two and a
' committee of the trustees for the parish, &c. under the Statute
' Labour Act for the county,' &c. No. 227. p. 381.— See Burgh
Royal, 2.— Justice, Administration of, 1. — Partnership, 1. 3. 4—
Principal and Agent, 2. — Tutors and Curators, 2.
Tbust.
. 1. Certain persona holding an entailed* estate in trust, under condition
that they should only denude in favour of the heir when the whole
debts affecting the estate were extinguished, and having denuded
while certain debts remained unpaid, to. answer whicrv however,
they stated that tbey had retained funds — Held, on these debts be-
ing demanded from a succeeding beir, that he was entitled to decree
in an action of relief, not. only against the trustees, but also against
the representative of the heir in whose favour tbey bad denuded,
and who had granted them a discharge, No. 68. p. 104
2. An acceding creditor to a voluntary trust, under which the trustee
had entered into possession of the estate, having obtained from the
bankrupt a quantity of grain and sold it*— Held not entitled to set off
the price against bis debt, or retain it in payment of bis dividend,
but bound, in an action at the instance of the trustee^ to consign the
whole amount, without deduction of part which he had failed to re-
cover, or of payments made to the bankrupt without authority of
the trustee, No.. 79. p. 122.
. 3. A creditor of a trust-estate, under a voluntary trust, having succeeded
in a litigation with the creditors of the truster in establishing his
claim against the, trust-estate — Held that, in accounting with him,
. the trustee was < not entitled to deduct the expenses of the litigation,
No. 122. p. 203.
4. Circumstances. under which it was held that testamentary trustees,
who were required by the testator to invest the residue tof his funds
INDEX OF MATTERS. dig
Trust.
a heritable pmoperty or bank security, and who, acting under the
advice of counsel, had. declined, on the requisition of all, concerned,
to- invest the reside* in Government stock, and brought a process of
multiplepoinding and exoneration, in the course of which the fund
was paid to those haying right, were liable in the lost: thereby sus-
tained, No.. 19&. p.. 322.
$• A party haying accepted the office of trustee, along with another,
for creditors, and baying allowed, bis name to be used as such, but
denying that be bad, intromitted with the funds, and alleging that
this had been done exclusively by, the other trustee,, who was. now
bankrupt — Held,
(1.) That he was, notwithstanding, accountable to a creditor, as. if
be, had intfoniit^efl ; and,
(2.) That a decree cognitionis causa is sufficient evidence of a debt
in a question wfith such trustee, $o» 210. p. 346.
6, Several trustees having been nominated by a deed of settlement, and
three declared to be a, quorum, and all of them having accepted, and
the number having been, reduced by death to three— *Held that one
of them, who, although he had accepted, yet declined to act, was
bound to concur with the other two. in all reasonable and proper acts
of administration, and in particular in uplifting part of the trus>
ftmds* the loan o£ which, he alleged he had disapproved of, No. 216.
p. 358.
%. A, party having by, a. trust-deed, conveyed bis whole foods, interest
., aw proceed* thereof, to trustees,, to, be vested in lands which were
to be annexed to hi* entailed estate; and the heir at law and of tailzie
having claimed: the interest, of die fund not invested in land from
and after the expiration of a year from the death of the truster ; and
the Court of Session haying assoilzied the-trusteee from, the claim,
and the fibrose of Lords having remitted, to take the opinion of all
the Judges, the Court adhered, (reversed,) No. 24£. p. 476.
9. 'the managing; trustee. under a. deed of settlement haying, at receiv-
ing a.d^cbftrge of a, count and reckoning* granted a letfer* to the
pursuers, declaring that certain claims against his brother, another
of the trustees, were not. eettfadj *nd should be determined by a sub-
mission— Held tlpt both these parties were accountable under that
letter, No> 883. p. 806.
9. A party having conveyed his whole property, and, inter alia, an
heritable bond, to persons who had been nominated his executors in
a will previously executed, or the survivor, in trust for the purposes
declared in the will, or to be declared in any future will ; and having
subsequently executed a second will in the English form, and im-
probative by the law of Scotland, revoking all former wills and ' tes-
' tamentary dispositions,' and containing a settlement of all his pro-
perty, including the heritable bond — Held,
(1.) That the trust-deed was not revoked ; and,
(2.) That the survivor of the two trustees was entitled upder it to
take up the heritable bond, and obtain an entry from the superior,
No. 437. p. 897.— See Nobile Officium.
Trustee— See Proof > III. 5.— Trust.
Tutors and Curators.
1. Held that a discharge of an heritable bond, granted by persons in
xlir INDEX OF MATTERS.
Tutors and Curators.
the capacity of tutors after their office had expired, was null and
void, and that they were bound to relieve the parties to whom the
discharge had been granted of -all 4he consequences thereof. No. 87.
p. 136.
2. (1.) Tutors who had intromitted with their pupils' effects, before
making up inventories, removed as suspect ; and,
(2.) The disclamation of the nearest of kin in an action for remov-
ing tutors no bar to the title of the pupils, and/>f a tutor ad litem to
insist in it, No. 110. p. 177. — See Curator Bonis — Decnee in Ab-
sence, l^-Parent and Child, 1^-Passwe TUk, h—Tifie to Sue,
fa. 6.
Usury.
(1.) A party held barred from objecting to a deed as illegal on the
head of usury ; and,
(2.) A sale of Government stock of the value of £7620 for an herit-
able bond of £10,000, and interest thereon at Ave per cent., and of
which the principal sum was to be payable only on certain ■contin-
gencies, held not usurious, No. 150. p. 251.
Vitiation.— See BUI of Exchange.
Vitious Intromission. — See Passive Title.
Warrandice.
1. A party having purchased lands with the price of teinds sold by 1dm
under a warrandice against augmentations, and taken the lands to
himself in liferent, and to his son and a series of heirs in foe ; and
augmentations having been granted ; and ah adjudication founded on
. the warrandice having been brought — Held that an heir, who had
made up titles to the fiar, and not to the liferenter, could not oppose
it, No. 49. p. 68.— See Landlord and Tenant, 8.
2. Circumstances in which * party who, a few weeks before the judg-
ment of the. House of Lords setting aside the Queensberry leases,
obtained a sublease of one of the forms * to the termination' of the
principal lease, but without any clause of warrandice, was held en-
titled to relief and damages from the principal tenant, No. 100.
p. 162.
S. Construction of a clause of, No. 809. p, 681.
@t*/i(&? jdUt/ttetdf/t//- <5>Wt* *&*■*:*//
CASES
DECIDED IK
THE COURT OF SESSION,
WINTER 1826-1827.
Joseph M'Leod, Petitioner. — Greenshields. No. 1.
Robert Hill, W. S. Respondent. — Maidmeni.
Preeets-Cqrfum. — Circumstances under which the Court, After the lapse of twenty
years, refused to issue a process-caption at the instance of a private party against
an agent, to recover title-deeds produced in a process, and for which his receipt
stood.
ATLeod presented a petition to the Lord Ordinary on the Nov. 16. 1826. •
bills, stating that prior to 1804 he had raised two actions in this uT Division. '
Court, in which he had produced certain title-deeds, forming a Bill-Chamber.
part of the titles to a property belonging to him : that the agents Lords
for the defenders were Messrs. Ninian and Robert Hill, W. S., and Mcdwyn.
and that decrees of absolvitor had been obtained on the 14th of H.
February oi that year: that it appeared from the receipt-book
of the clerk to the process, that on the 12th of May 1805 the
whole writs in the inventory had been borrowed by the appren-
tice of Mr. Robert Hill, and that there was a marking, dated the
25th of April 1808, bearing that they had been all returned, ex-
cept the above title-deeds. He therefore prayed the Lord Ordi-
nary ' to grant caption against the said Robert Hill for the re-
' turn of the whole productions made in the foregoing processes,
* at least for the return of the title-deeds before mentioned," and
to find him liable in expenses. Mr. Hill, after stating that he
had, without success, made an extensive and laborious search for
the deeds, and that he could find nothing relative to them except
a fetter from the petitioner's agent in April 1808, requesting that .
* Both Divisions were engaged on the 14th and 16th in a private consultation as
to cases remitted from the House of Lords.
VOL. V. A
2 CASES DECIDED IN THE
i
they might be given to Mr. Boyd, writer to the signet, or his
clerk, which he presumed must have been done, pleaded in de-
fence,—!. That it was not competent for a private party to apply
foV a caption; that this could only be done by the clerk of Court,
the proper custodier of the writs, in whose favour the receipt
had been granted ; and that thefe was no evidence that the peti-
tioner had any right to the deeds in question, which were not
nominatim in his favour ;— and, £. That after a case had ceased
to depend in Court, and at all events post tantum temporis, it was
not competent to issue a caption even at the instance of the clerk ;
and more especially as the receipt had been granted at a time
when there was great neglect in deleting them, even when the
papers were actually returned* The Court, on the report of the
Lord Ordinary, dismissed the petition, and found Mr. Hill en-
titled to expenses.
Lord President. — The presumption is, post tantum teiaporis, that
the deeds must have been either returned to the dnk, or given up
to die petitioner's agent. Besides, we have no evidence then this
person has any right to these deeds, and therefore I doubt whether
he can competently apply for a caption in this summary Form. Hie
clerk of the process, in whose favour the receipts are granted, does
not require to show an interest in the deeds, but a private party must.
Lord Balgray. — The letter in April 1808 conflrtote the ptosamp-
tfoa that the deeds must have been given up. ft is impossible to
allow a caption to be issued.
Lord Gillies. — I am clearly of the same opinion.
Lord Craigir. — There must be some prescription of these receipts*
We esnnot issue a caption in such a case as this.
Respondent's Authorities*— \. Beveridge, 250 ; Agnew v. flatborn, 1813, (not rep.) ;
Hofhe, Feb. 18. 1825, (ante* Vol. III. No. 376.)
A. Bayne,— J. B. Gracie, W. S*— Agents.
No. 2« Andrew Stewart, Suspetttler.--5%w^— 7«do^/.
Ghhert Laito, Charger.-^-Jg^£^--.JBn)tonfe^.
Process. — A reclaiming note which was not marked by a Principal Cleric Within
twenty-one days from the date of the interlocutor complained of, refused as in-
competent. *
Nov. 16. 1826. In a suspension at the instance of Stewart against Laag aa as-
1 btD aignee of a bill, the Lord Ordinary having found that Lang was an
Lord Meadow- onerous holder, Stewart presented a reclaiming note, which was
bank. sent to the summar roll, and thereafter remitted to the Outer
s. House, to form part of the trials of Lord Probationer Corehouse.
COURT OF SESSION. 3
Lang then objected that the reclaiming note had not been marked
by a Principal Clerk of Session within the reclaiming days, (but
the objection was waived, to enable his Lordship to report on the
merits) ; and after he had done so, and stated his opinion that
the interlocutor should be altered, the objection was repeated and
sustained.
J. Dickie, W. 8. — Gilbert Lang, W. S. — Agents.
Sir Jambs Colquhoum, Bart Suspender. — Forsyth. , N0. 3.
Robert Colquhoun, Charger.— Speirs.
Sir James Colquhouk having purchased a property from Nov. 16. 182$.
the charger, and conceiving that the latter was prohibited by the . ~
terms of an entail from selling, presented a bill of suspension, Bill-Chamber.
which the Court, on the report of the Lord Ordinary, passed, to Lord Medwyn.
try the question.
D» Fisher, — G. Dunlop, W. S.— Agents.
J. Watson, Advocator and Charger. — Graham Bell* No. 4.
J. Grjndlay, Respondent and Suspender. — Skene.
j4pprenHc*—SlatMle. — A muter currier having ceased to take out the licence re-
quired by certain acts of Parliament, held,— 1.— That be was not entitled to
enforce the penalty in the indenture of an apprentice, whom he alleged to have
violated Ms agreement ;— and^— 2. — That the apprentice was entitled to be freed
from the indenture, though actually receiving Instruction in the trade.
^
Br the acta 56th Geo. III. c. 110, § 7, and 5£d Geo. III. Nov. 16. 1826.
c/94^ § 7, it is declared that no tanner shall, by himself or by any ~
other person, carry on the trade of a currier, or other artificer Lord cringlel
exercising the cutting or working of leather; and by the 24. Geo. tie-
II. c 41, it is provided, that every currier shall, under certain . M K*
penalties therein specified, take out a licence annually, and all per-
sons are prohibited from exercising the trade, by themselves or
others, without such licence. With a view to evade the former
of these statutes, tanners often employ as foreman in their works
a person who takes out a licence as a master currier, and to
whom the apprentices are bound, but who in reality acts as
the servant of the tanner. In this way Johnston, a tanner in
Glasgow, employed Watson, the advocator, with whom the re-
spondent Grindkty entered into indentures as an apprentice for the
period of seven years, each party binding himself to perform the
conditions (which were those usual in such contracts) under a
4 CASES DECIDED IN THE
penalty of i?30. Under this indenture Grindlay continued to
work as an apprentice with Watson for five years till 1828, when
the latter was removed from his office of foreman. He was suc-
ceeded in this situation by one Wright, and he thereafter worked
merely as a journeyman, and ceased to take out a currier's li-
cence ; but he did not transfer Grindlay's indenture to Wright,
by whom the licence was now taken out, and to whom the inden-
tures of the other apprentices were transferred. Grindlay con-
tinued, without objection, to work under and receive instruction
from Wright till June 1824, when he was turned away for al-
leged misconduct. He then presented a petition to the Justices
of Peace of Lanarkshire, without founding on the circumstance
of Watson not having a licence, but praying to have it found that
Watson was ' either bound to give the petitioner regular employ-
' ment, or to declare the indenture forfeit, and at an end, and in
* that case to deliver it up to the petitioner.1 Watson defended
himself against this application on the gtound that Grindlay's
conduct justified his dismissal, and the Justices, after a proof,
sustained this defence. Grindlay then contended that Watson
having no licence as a currier, and having had none for 16
months past, was not in a situation either to enforce the inden-
ture, or to fulfil his part of it by instructing him in the trade.
The Justices, in consequence of this plea, found * the indenture
' forfeited, and that the defender has no further claim to the ser-
' vices of the pursuer under the same,' and granted warrant for
delivering it up to Grindlay. In the mean time Watson had given
Grindlay and his cautioner a charge for payment of the penalty
in the indenture, as having been forfeited by Grindlay's miscon-
duct. Of this charge Grindlay and his cautioner brought a sus-
pension, while Watson, on the other hand, brought an advocation
of the judgment of the Justices on Grindlay's petitipn. By
Watson it was pleaded,—
1. That although the carrying on the trade of a currier with-
out a licence subjected the party who did so to certain penalties,
yet the statutes (which were only for the protection of the re»
venue) did not render void an indenture with such a party, so
long as the apprentice was properly instructed, which was not
denied to have been the case here ; and that it was not requisite,
as was found in the case of Gardiner, that the master with whom
the indenture was entered into should personally instruct the ap-
prentice.
£. That the proceedings of the Justices were informal, in so
far as they did not first allow him an opportunity of giving
Grindlay regular employment.
COURT OF SESSION. 5
3. That the Justices had no jurisdiction to warrant them to
declare an indenture forfeited, and to ordain it to be delivered
up, their powers depending on statute law, which did not confer
such jurisdiction: And,
4. That the dismissal of Grindlay was fully warranted by his
misconduct, as proved before the Justices.
On the other hand, it was maintained for Grindlay,
1. That Watson, not having a licence, was prohibited by act of
Parliament from carrying on the trade of a currier by himself
or others, and was thereby necessarily incapacitated from legally
retaining an apprentice ; and besides, that he had actually ceased
to be a master currier for sixteen months.
2. That it would have been absurd in the Justices to allow
Watson an opportunity of giving regular employment, when he
▼as confessedly incapacitated from doing so.
3. That the proceedings of the Justices were not of a declara-
tory nature, but in reality a summary procedure competent to
them, if not by statute, at least by universal usage, warranting
them to decide all such matters between master and servant, and
at all events that this plea did not affect the question in the sus-
pension : And,
4. That even if a sufficient cause of dismissal had been proved,
(which was denied,) he was not bound to fulfil his part of the in-
denture to a master incapacitated from implementing the obliga-
tions on the other side.
The Lord Ordinary suspended the letters in the suspen-
sion, (which his Lordship considered to be independent of the
question in the advocation,) ' because, whether the Justices of the
' Peace were competent to declare the indenture forfeited, and
* to deliver it up, the Lord Ordinary is' clearly of opinion, that
* before any master is entitled to charge his apprentice to imple-
' ment the indenture, and to pay the penalty therein stipulated
' for non-performance; he the master must be in a condition to
{ perform his part thereof;* and his Lordship stated his opinion
that Watson, in consequence of not having a licence, was not in a
condition to do so, either by himself or any other person.
Against this interlocutor Watson reclaimed, and the advocation
having been reported by the Lord Ordinary on Cases, the Court
in the suspension unanimously adhered, and in the advocation ad-
vocated the cause ; and, * in respect of the whole circumstances,1
found ' Grindlay free from the term of the indenture in question,*
aod expenses due in both processes.
Lord Alloway. — It is clear that without a licence Watson could
not carry on the work of a currier, and this case is therefore totally
6 CASES DECIDED IN THE
different from thai of Gardiner, where the man carried o» a legal
trade, though not giving constant personal attendance. There may
perhaps be a little doubt as to the power of the Justices to ordain
the indentures to be given up, but still this party i* substantially en-
titled to be freed from them.
The other Judges concurred.
Advocator'* Authority.— Gardiner, July 13. 1775, (P. C.)
J. Ushbr, — J. Burnbss, — Agents.
No. 5. Rev. J Wilson and J. Alpine, Pursuers.— Monnreiff—
D. Macfarlane.
Glasgow Society of Teachers, Defenders.— More — Penny*
Society.— Two original members of a benefit society, (the rules of which reserved
a power of alteration,) having paid a certain sum of entry-money declared by the
original regulations to free the members paying it from all annual contributions,
held not entitled to certain additional benefits subsequently provided to the
members, without contributing the additional annual payments established by
the society at the time of making this increased provision.
Nov. 16. 1826. Ik 1794 a society was formed by a number of the school-
2d Division. masters °? Glasgow and its neighbourhood, the object of which
Lord Macken- wa8> hy the regulations, declared to be c for the relief of suet or-
zie. ' dinary members, their widows and children, as by bodily in-
F* ( firmity, or misfortunes of any kind, might be deprived of the
1 means of supporting themselves in a comfortable manner ;' and
it was provided that each member* when ' in need,9 should receive
' at least a guinea,9 and the widow of a member, when in necessity,
half a guinea a month. The funds for this purpose were, by she
regulations, to be raised by a fine of three guineas as entry-money,
and payment by each member of four shillings annually in name
of quarter accounts ; but with this provision, that if any member
should pay three guineas in addition to his entry-money, * no
' more quarter accounts can be demanded of him. This advance
' entitles him to the denomination of a free taiember of the society
* in all time coming.9 A power was, however, reserved of altering
the rules of the institution, as might be judged proper. The
pursuers, then teachers in Glasgow, were original members of
this society, and by the payment of three guineas in addition to
their entry-money they became entitled to the privileges of
free members. Having, however, been appointed to parochial
charges in the Church of Scotland, they were not in the use
to attend any meetings of the society, which in 181 5 took advan-
tage of the Friendly Society Act, and adopted a new code of
COUQT OP SESSION- 7
rules* which was regularly confirmed by a Justice of the Peace.
3y the mew regulations the entry-mopey was raised to five
guineas, and the annual subscription to £1 ; but it was declared
that the original members, who were mentioned by name, (in-
cluding the pursuere,) « may still continue to pay the same sum
* as formerly, and have the same privileges as the other members,
' and be entitled to all the advantages of the society.*1
In particular* the benefits to be derived from the society were
considerably increased by these new rules, members unable to
follow their profession from old age or had health, widows and
children, (where no widow was left,) were to receive an annuity
of £\5% without requiring that they should be in a state of want;
but it was provided, that if the annual income of the society
should at any time be unequal to pay these annuities, ' in that
* case an additional quarterly payment, not exceeding five shil-
* lings, shall be levied from each member, till such time as the
' funds of the society shall become adequate to these payments.'
The funds having, in 1823, become inadequate to bear the
annuities with which they were burdened, the society resolved
to levy this additional quarterly payment of five shillings,
which they denpanded as well from the original a* the new mem-
bers, allowing* however, the firee members a deduction of four
shillings in the year, as the interest of the three guineas advanced
by them in addition to their entry-money. The pursuers there-
upon brought an action of declarator to have it found,
* 1. That the pursuers, having purchased to themselves the be-
* nefit of free members, became, in virtue of the old laws and re-
' gulaAipns, exempted from the payment of all quarterly accounts
' thereafter.
' 2. Thqt the el*useef exemption was a fundamental law of the
c society, which could at no future period be altered to the preju*
' dice of the pursuers, without their special consent-
c 3. Thqt, at any rate, in the new laws and regulations there is
* 00 provijion which alters the abpve law, or which can entitle the
' society to exact from the pursuers any payment whatever ; fftd,
* lastly, that the pursuers having, by the payments made by
' them, secured all the benefits and privileges of the society,
* however great these might become, those arising out pf the
' new laws accrue to, and can be churned by them apd their
' widows aud children, in the same manner that any other mem-
' ber, or the widow or children of any other member, cap claim
The Lord Ordinary, ( in respect that the pursuers claim
* right, under the new regulations, for theowelves and families,'
8 CASES DECIDED IN THE
found that they were not entitled to complain of the' same,'
and therefore assoilzied the society ; and the Court unanimously
adhered.
J. C. Wilson, W. S— W. and A. Q. Ellis, W. S.— Agents.
No, 6. J. Smyth, W. S. Pursuer. — Jeffrey— Cuninghame.
Q. D. Ninian, Defender. — Moncreiff—Montcith.
Jurisdiction— Foreigner — Artettment.-* Held,— -1.— That an agent employed by
a trustee on a sequestrated estate to conduct a process for behoof of the estate,
cannot proceed in a Court in this country against a foreigner who has claimed
on the estate for payment of his business account of expenses, without first
establishing a jurisdiction by arrestment jurisdictionis fundandae causa ; *nd,—
2.— That it is competent to an arrestee to plead in a forthcoming that the decree
of constitution obtained by the pursuer against the foreigner was obtained with-
out so establishing a jurisdiction.
Nov. 16. 1826. Beaufoy, Biddle, and James, merchants in London, be-
2d Division, came, in 1794, creditors of Stewart and Ninian, a company carry-
Lord Macken- ing on business in Greenock; of which the partners were Charles
zi,e" Stewart and Quintm Ninian. This company ,was dissolved by
the death of Quintin Ninian in 1799, and a new company, under ,
the same firm, was immediately formed by Stewart, along with
Alexander Ninian, who likewise died about a year thereafter ;
and & sequestration was then awarded against this second com-
pany, and Stewart as an individual. In this sequestration a claim
was lodged by one Young, as* mandatory for Beaufoy, Biddle,
and James, accompanied by an affidavit on their part specially
describing their debt as contracted in 1794, and being due by'
Stewart and Ninian, and Charles Stewart and Quintin Ninian,'
the individual partners thereof. Mr. Smyth, writer to the signet,
having been employed by the trustee on the sequestrated estate as*
agent, conducted in this Court an action in name of the trustee
against the representatives of Quintin Ninian, (the partner of
the first company,) to recover from them a sum alleged to have'
been due by Quintin Ninian to Stewart. In this action, (which'
was unsuccessful,) a considerable business account was incur-'
red to Mr. Smyth, for payment of which (the sequestration '
being still subsisting) he raised an ordinary action against the'
creditors, calling among the rest Beaufoy, Biddle, and James,
without, however, taking any steps to found a jurisdiction by ar-*
restment of funds in this country. They made no appearance,
and decree in absence was pronounced against them, on which
Smyth obtained letters of horning, containing warrant to arrest,
in virtue of which he used arrestments in the hands of the de-
w*
•
•
♦
COURT OF SESSION. 9
fender, as being indebted to Beaufoy, Biddle, and James, and
subsequently brought the present action of forthcoming.
Ill defence it was pleaded that the arrestment was invalid, in so
far as it proceeded on a decree against foreigners, against whom
no jurisdiction had been established by a previous arrestment ju-
rijtfictionis fundandae causa.
To this it was answered for Smyth,
1. That Beaufoy, Biddle, and James having lodged a claim
in the sequestration, (which claim, though for a debt due by
the company, who were not sequestrated, was a good claim
against the estate of Stewart, who was sequestrated as an in-
dividual,) they and all the creditors must be held as his em-
ployers in the actions instituted by the trustee for their common
behoof; and having thus raised an action in this Court, they,
on the principles of reconvention, had subjected themselves to
the jurisdiction of the Court in all matters necessarily incident
to their suit ; that the agent's claim for his expenses was of this
nature, and consequently that a previous arrestment was not ne-
cessary to found a jurisdiction— an inference supported by the
analogy of the Act of Sederunt 1806 : And,
2. That this defence was not competent to an arrestee, but only
to the common debtor, as the diligence, and decree on which it pro-
ceeded, were ex facie correct, so that there was no nullity which
rendered it unsafe for him to pay.
On the other hand, it was pleaded for the arrestee,
1. That the principle of reconvention could not apply, except
where there were counter actions ; and further, that the claim of
Beaufoy, Biddle, and James, which was against the first company,
had been lodged by their mandatory on the mistaken supposition
that it was the first company which was sequestrated, consisting
of Charles Stewart and Quintin Niniah, and not against that of
Stewart and Alexander Ninian ; and that so far from the action,
for the expenses of which Mr. Smyth's action was brought, having
been for the behoof of Beaufoy, Biddle, and James, it was con-
trary to tbeir interest, as its object was to take funds from the
estate of Quintin Ninian, and transfer them to the estate of Charles
Stewart, thus rendering them divisible among the creditors of the
second company : And,
2. That the plea was perfectly competent to the arrestee, as he
was not in safety to pay while there wa& an intrinsic nullity in
the diligence, and unless the common debtors were made properly
parties to the forthcoming, which they could not be without an
arrestment jurisdictionis fundandae causfi.
The Lord Ordinary having sustained this defence and assoil-
It) CASES DECIDED IN THE
zied, Smyth reclaimed; *i*d the Coqrt, after ordering C*6GS* ad-
hered so far a* the. defence was sustained ; but, ia place of assoil-
zieing, dismissed the action.
r
LiOBj> Ju$tic£-Cl?rk. — It does not appear to me that either of Mr.
Smyth's pleat are well founded, even taking the facts as to the
claim of Beaufoy, Biddle, and James, to he exactly as he states them*
Jt if entirely out of the question for him to obtain any assistance
from the Act of Sederunt 1806., which applies only to the ordinary
case of agent and client, where the former is directly employed by
the latter ; and on the general point I am not able to perceive such
a connexion between him and the common debtors here as entitles
him to avail himself of the doctrine of reconvention, and to the ef-
fect of obtaining decree against these foreigners, without establish-
ing a jurisdiction by arrestment* As to the eases quoted for the
pursuer, the only erne which applies at aH is that of Mackritt ; and
so far as the principle of reconvention was involved in that case,
there were counter actions. I am sati&fied also that the defence
hese is perfectly competent tathe arrestee, who cannot pay in safety,
• if the common debtors have net been brought properly under the
jurisdiction of the Court.
Lo*» Pixsf iuT.-r-If Beaufoy, Biddle* and James had been the di-
rect employers of Mr. Smyth, I should have doubted much whe-
ther an arrestment jurisdiotienis fondants? causa, would have been
necessary to warrant an action against them for payment, of the ex-
penses ; and I rather think that in such a case an ageqt woujd be
entitled, without such arrestment, to pursue his client, though a
foreigner, either by an ordinary action, or under the Act of Sede-
runt ; not, however^ on the principle of reconvention, which does
not apply to such a case, but on this,— that parties bringing actions
in their own names in this Court subject themselves to its jurisdic-
tion, to the extent of the agent's claim of expenses. Here, how-
ever, the circumstances are very different, as the action was brought
by a trustee, and it is not even made out that it was for the inter-
est of this company, but rather the reverse 5 and there can be no
doubt that the objection is competent to the arrestee.
Loan Allow ay. —I concur in holding that the defence is perfectly
competent to the arrestee, and that if Beaufoy, Biddle, and James
had directly employed Smyth, he might have got decree against
* them for his expenses, without any arrestment jurisdiction is fun-
dandse oausa ; but then I cannot draw any distinction between a
direct employer and claimants under a sequestration, who are direct-
ly liable to the agent employed by the trustee. There is, however,
some difficulty as to the matter of fact ; but it rather appears to me
that the Company had an interest in the sequestration ia which
Mr* Smyth was employed > and in this view there would be room
I
COURT OP SESSION. 11
fist the applipatiaa of the doctrine of reoonwo^ea> the piutoipl*
of whiokt is, that no person cm avail himself of the jurisdiction
of this country, without subjecting himself in it to all incidental
claims. At the same time, if the action was, in point of fact, con-
trary to the interest of that company, it would greatly affect my
opinion*
JLobd Guvijek.— As to the arrestee's title to plead the objection, it
is notorious that a forthcoming cannot be brought without making
the common debtor a party j and unless he is properly made a party,
the arrestee cannot pay in safety. As to the other matter, though
I will not be rash in laying it down tnat sn agent is always en-
titled to take decree against his foreign employer, even when di-
rectly employed, still a great deal may be said for that doctrine. It
is, however, a very different thing where the agent's claim arises
out of a direct mandate to him, and where it arises from the opera-
tion of the law as in regard to the liability of creditors in a seques-
tration to the agent employed by the trustee; and in the circum-
stances of this ease, I can have no doubt of the interlocutor of the
Lord Ordinary.
Pmrwuer'* Authorities.— Ksmes' Elucid. Art 21 ; 9. Bank. 477 ; Kirkhead, Feb. 9.
1628, (4839) ; Vans v. Sandilands, 1675, (4840) ; Balle, June 21. 1763, (F. C.) ;
Mackriu, June 17. 1773, (4885); Mansfield, Ramsay, and Co. June 17. 1795,
(F. C.) /
Defender's Authorities.— \. fink. 2. 19; 2. Bell, 73.; Voet. ad Pand. 5. 1. 78;
2. Huberi Prari. 849.
J. Smyth, W. S— Campbell and Macdowall, — Agents.
James Glen, Pursuer. — Cuninghame — Skene. No. 7-
Smith Glen, I)e{ender.~MoruveiJp~Satidfbrd.
Title to Pursue*— Held, That in order to entitle a party to insist in an action of re-
duction of a conveyance or transfer of money by a sequestrated bankrupt, as as-
signee of the creditors, be must have an assignation to that special effect.
The late William Glen, proprietor of a distillery in Linlith-^ Nov. 17. 1826.
gowshire, entered into a contract of copartnership in 1809 with lBT division.
his two sons, John and James, by which it was agreed that Wil- Lord Medwyn.
liam was to have two shares, while John and James were each to 8.
have one. Neither the distillery nor the utensils were to form
part of the stock of the company. William and his son John
were partners of the Falkirk Union Bank, which was sequestrate ,
ed under the bankrupt act in October 1816. Besides those sons,
William had another, Smith, the defender, in whose favour he
made an entry in the cash-book of the distillery company on the
1st of October, by which he transferred to him JP1OO0, and on
IS CASES DECIDED IN THE
t
$
the 3d of the same month he made a counter entry, by which he
debited himself with that sum. By virtue of the sequestration,
the trustee on the Falkirk Bank acquired right to the respective
shares and interests of William and John Glen in the distillery
company, which continued solvent. In April 1817 a transaction
was entered into between him and the pursuer James, by which
he granted an assignation to the latter, upon the narrative that ( he,
' as the only solvent partner of the said company of William Glen
* and Sons, at a general meeting of the creditors of the said Fal-
' kirk Union Banking Company, hel<J at Falkirk on Monday 7th
' April 1817, offered to take into his own hands, and uplift on
' his own account, the whole debts, bills, and obligations due to
' the said concern of William Glen and Sons, as a company of
' distillers at Mains, and, under the explanations after mentioned,
' to pay and discharge, within twelve months from the said 7th
' April 1817, the whole of the debts, bills, obligations, and en-
c gagements of the said concern, and in fact all sums for which
' the said company was liable on any account ; provided I, as
' trustee foresaid, should give him such assignation or authority
c to uplift and discharge the said debts, bills, and obligations, as
' should be considered necessary, with warrandice from fact and
€ deed only.'
After further stating that James was, in consideration thereof,
and of the trustee giving up all claim against the distillery com-
pany, to pay £JBO00f the deed proceeded in these terms: —
' Therefore I do hereby, as trustee, and with consent foresaid,
* in implement of my part of the agreement, assign, dispone, con-
' vey, and make over to and in favour of the said James Glen,
' his heirs, executors, or assignees whomsoever, all and whole the
' whole debts, bills, and obligations of every description resting
' and owing by whatever person or persons to the said concern of
* William Glen and Sons, so far as I, as trustee foresaid, or the
* said William Glen and John Glen, are concerned, whether liqui-
< dated by bill or obligation, or standing upon open account or
4 otherwise, with the whole vouchers and instructions thereof, and
' all that has followed, or may be competent to follow thereon, for
' ever ; surrogating and substituting the said James Glen in the
' full right of me as trustee foresaid, and of the said William
' Glen and John Glen, in the premises ; with full power to the said
' James Glen to enter into the possession thereof, and to sue and
' prosecute for the same in his own name, and on his own ac-
* count, and generally to do every thing thereanent which I
' could have done before granting these presents/
Smith having raised an action against James for payment of
COURT OF SESSION. 13
the «£1000, the latter, founding on the above assignation, brought
an action of reduction against him of the entry or transference
in the books. This action he rested on the ground,
1. That the transfer had been made by their father, when insol-
vent, Without any necessary cause, to Smith, a conjunct and confi-
dent person, and so was reducible under the statute 1621 : And,
2. That having been made within sixty days from the father's
bankruptcy, it was liable to be set aside on the statute 1696.
In defence it was maintained by Smith, that James had no title
to pursue;
1. Because the assignation founded on merely conveyed to him
the debts due to the distillery company, but did not contain any
conveyance to a right of reduction on the above statutes, (which
was personal to prior creditors only,) or to insist in any action
relative to deftts due by the company : And,
£. Because he was not a prior creditor of his father, and there-
fore, unless he had obtained a special assignation from those who
were his creditors to set aside the transference, he could not insist
in the process.
To this it was answered,
1. That the assignation conveyed to him the whole rights which
the creditors had against the distillery company, and consequently
also the right to vindicate any illegal transference by William Glen
of his share of the funds : And,
2. That he had obtained, since the date of the action, a sup-
plementary assignation, specifically conveying to him the right to
reduce the transference.
The 'Lord Ordinary found, * That the assignation founded
* on by the pursuer, as giving him a right to institute the pre-
( sent process of reduction, does not afford a sufficient title for
' said action, and therefore sustained the objection to the title to
' pursue, and found him liable in expenses.' In a note his Lord-,
ship observed, that ' if the Lord Ordinary is right in holding
* that the original assignation did not convey the right of chal-
' Jenging the transfer of the i?1000 to the defender, by which he
' became creditor, and not debtor, to the company of William
* Glen and Sons, it seems to follow that the supplementary assign-
' ation will not support a summons which is not founded on it.*
To this interlocutor the Court, on the report of Lord Probationer
Corehouse, adhered.
Lord Probationer. — The interlocutor of the Lord Ordinary is well
founded, and the rationes assigned are satisfactory. The question
here is similar to that which has arisen as to the right of a bankrupt
who has settled under a sequestration with his creditors, and it has
14 CASES DECIDED IN THE
been found, that unless he lias a special assignation to the light of
the creditors to reduce preferences, he cannot do bo. That point was
so decided by the case of M'Eie v. BfGillivray, in which I was coun-
sel, and which is correctly stated by Mr. Bell, vol. ii. p. 486. I am
therefore of opinion, that the original assignation has bestowed on
the pawner no title to reduce this supposed preference. Tbe sup-
plementary assignation cannot avail the pursuer, because it is not die
one on which the summons is founded, and is not calculated merely
to cure a defect in the former assignation! but to convey a right not
previously assigned.
The Judges unanimously concurred in this opinion.
J. Gheio, W. &— J. B. Watt,— Agents.
No. 8. Rdmebt Habvie, Suspenden-W^r^y—j^qpfer.
John Ferguson, Charger. — SoL-Gen. Hope — Wood.
Jurisdiction.— Held competent for the Magistrates of a royal burgh to act aa Judges
in a question between their own tacksman of burgh dues, and a burgess relative to
the payment of these dues. '
Nov. 17. 1826. The Town and Bridge Customs of the Burgh of Linlithgow
1st Division. are *n *^e P1"80^ of being let by the Magistrates by public roup.
Lord Eldin. In the month of October 1822 they were exposed to be let for
s. the space of one. year, from and after the 11th day of November
1822, when John Ferguson, shoemaker in Linlithgow, being the
highest offerer, was preferred to the lease.
The articles of roup bore that the customs were * to be levied
' according to use and wont.' After providing that the person to
be preferred to the lease should* along with his cautioners, sub-
scribe a minute enacting themselves, conjunctly and severally,
to perform the conditions imposed upon the lessee, the articles of
roup contain a clause imposing an obligation upon the Magistrates,
conceived in the following terms : — ' The Magistrates, or a quo-
* rum of them, shall in said minute of enactment* along with the
* person or persons preferred to the let of the premises, and his
* or their cautioners* bind and oblige themselves, and the Council
* of said burgh, and their successors in their respective offices, to
* maintain the person or persons to be preferred to said let, and
' his or their cautioner or cautioners, in the possession of the pre-
' mises to be let to him or than under those articles, during the
' period aforesaid, according to the terms of these articles* and
c use and wont'
A minute of enactment was accordingly signed by John Fer-
guson and his cautioners on the one part, and by the Magistrates
on the other, in terms of the articles of roup.
COURT OF SESSION. * 18
Ferguson, the tacksman, having entered upon bis lease,
custom from Robert Harvie, a carter or carrier in Linlithgow,
for goods carried by him belonging to unfreemen. Harvie ob-
jected to the demand, alleging that he was a burgess of the burgh,
and as such was exempted from the payment of custom. Fer-
guson admitted that Harvie was not liable to pay custom for
goods belonging to himself* or to any other burgess ; but main-
tained that he was bound to pay custom for goods which he car-
ried belonging to unfreemen, agreeably to the usage of the burgh.
Harvie, on the other hand, contended that his privilege of bur-
gess entitled him to carry goods to every person, whether a free-
man or not, without paying custom, and that such was the usage
of the burgh. The question upon the merits depended upon the
fact, whether the usage was as alleged by the one party or the
other*
Upon the first occasion, Ferguson detained Harvie's horse and
cart, which were liberated upon the hitter consigning the custom;
but, in consequence of what occurred upon that occasion, instead
of detaining Harvie's horse and cart in future, Ferguson kept ah
account of the carriages made by him for unfreemen, and after-
wards brought an action against him for the amount before the
Magistrates of the burgh.
Harvie declined the jurisdiction of the Magistrates, on the
ground that in their official character they had a direct interest
in the issue* in consequence of the obligation imposed upon them,
under the clause above quoted from the articles of roup. He
assigned as an additional reason of declinature, that as the case
virtually involved a general question as to the liability or non-
liability of all burgesses similarly situated with himself, the judg-
ment to be pronounced would go to affect the amount of the
eustotas, and consequently the rent to be obtained for them by
the Magistrates in flitttte years. He contended, that whatever
jurisdiction the Magistrates might possess in otdinary questions
arising between the tacksmen of the customs, and persons bring,
ing goods into the burgh, they were incompetent to entertain the
present case, the circumstances above mentioned being such, that
they to entertain 4t* they would in truth be judging in their
On the other hand, it was maintained on the part of the tacks-
man, that the jurisdiction of the Magistrates was perfectly com-
petent x that the only question directly at issue was, whether
the amount of customs concluded far was exigible by the puf*
nier from the defender-*-** question in the issue of which the
Mfcpatratet had no interest, because, in whatever way it should be
16 CASES DECIDED IN THE
determined, it could not affect the amount of the tack-duty which
the pursuer was bound to pay to them under his existing lease.
It was further contended, that the clause above quoted from the
articles of roup did not affect the question, as it merely bound
the Magistrates to maintain the tacksman in possession of the
customs, according to use and wont. As to the interest alleged
to arise from the effect which the decision of the question might
have on the rents to be obtained under future leases of the customs,
it was said, if any such interest could be said to exist in the Magis-
trates at all, that besides being merely in their official capacity,
and not as individuals, it was of that remote and indirect .nature
which neither law nor practice sustained as a good ground of de-
clinature of their jurisdiction.
The Magistrates repelled the plea of declinature, and decerned
against Harvie. A charge having been given to him, he brought
a suspension, and relied mainly on his objection to the jurisdic-
tion. The Lord Ordinary having suspended the letters simplici-
ter, Ferguson reclaimed; and the, Court then appointed him to
' lodge a condescendence of what he avers and offers to prove
* respecting the practice in cases of this nature in the other burgh
4 courts in Scotland/ and, on advising it with answers, (in which
it was denied that there was any such practice,) directed the
* parties to .prepare a joint Case, to be transmitted to the clerks of
' the several royal burghs in Scotland, for the purpose of ascertain-
' ing the general practice with respect to the jurisdiction asserted in
* the condescendence/ A joint Case (of which the above is a
transcript) was accordingly sent to the clerks of the several royal
burghs in Scotland, and they were requested to return answers
to the following questions : —
1st, Whether or not the Magistrates of your burgh are and
have been in the practice of judging generally in disputes which
arise between the tacksmen of the customs, and persons bringing
goods into the burgh ?
2d, Whether the Magistrates of your burgh are and have been
in the practice of judging in such cases as the present, where the
party from whom the custom is claimed rests his defence, not
merely on a denial of the facts out of which the tacksman's claim
against him arises, or of the amount of the claim, but on a general
plea of exemption from any claim in respect of the custom de-
manded? And, —
3d, Whether the Magistrates of your burgh are and have been
in the practice of sustaining their jurisdiction in such cases as th$
present, when their jurisdiction has been declined ?
Answers were accordingly returned, from which it appeared
COURT OF SESSION. 17
that while it was the practice in 51 royal burghs to sustain their
jurisdiction in such questions, in nine of them no such point
had occurred, and that it was the practice in two only to refuse
to judge in such matters, leaving them to the Sheriff. On advising
these answers, the Court repelled the objection to the jurisdiction,
and found the suspender liable in expenses. '
Lord President.— Tbe jurisdiction of almost every Court is founded
on practice and consuetude j and we have it established by the
most authentic evidence, that the jurisdiction here objected to is
exercised by almost every royal burgh in Scotland, and it appears
from the statement of some of the clerks that this very question
had been formerly decided. We must therefore alter the interlocu-
tor, and repel the objection j and as the suspender pointedly denied
the practice, he must be liable in expenses.
The other Judges concurred.
$ Authorities.— Lethinton, March 17. 1755, (3418) ; E. of Kintore, Feb.
27. 1802, (7673); Robertson, Nov. 21. 1823, (ante, Vol. II. No. 498.)
Merger's Authorities.— i. Erak. 2. 25; Dunbar, July 17. 1706, (3422); Napier,
Nor. 24. 182], (ante, Vol. 1. No. 198); Thomson, Feb. 25. 1824, (ante, Vol. II.
No. 675.)
G. and W. Napiib, W. S*— Inglis and Waia, W. S.— Agents.
_ •
W. Spkncb, Suspender. — Skene — Alison. No. Q.
A. Boss, ChargpT.~Moncreiff— Ivory.
Right, Absolute or Revocable. — A father having sold a piece of land, and token
the purchaser bound to grant a bond in favour of himself in liferent, for his life-
rent use aUenarly, and of his sons in fee, and having caused his sons to sign. a
postscript to the missive, agreeing not to call up the money for eight years cer-
tain ; but no bond having been delivered on the one hand, or disposition on the
other; held that the fee of the price was absolutely vested in the sons, and could
not be revoked by the father.
Spxnce, by a missive letter, offered to sell to Sir. John Hope, Nov. 17- 1826.
for ^£000, a piece of ground belonging to him, the price to be 2DDlvIBI0Jf
declared a burden on the lands, and to remain in Sir John's LordMacken.
hands till the expiry of two years after Spcnccs death at interest zie-
on a bond to be granted to him in liferent, for his liferent use
aUenarly, and his sons, William and George, equally between
them and their heirs, in fee. Before accepting this missive,
Sir John stated his wish, that in order to make him certain of
having the money in his hands for eight years, Spence's sons,
should sign an agreement at the end of the missive, giving their.
concurrence to this ; and accordingly Spence procured his two.
vol. v. B
18 CASKS DECIDED IN THE
boob to sign a postscript t» the missive, written by hfthself,
whereby they agreed 'that the above sum shall remain irt Sir
4 John Hope's haads* at least for eight yearfe certaan after Mar-
€ timnas ntekt 1814.* Sir John then accepted the offtr by a ikm-
eive on his part, and a hood mis executed by him, whereby he
bound and obliged himself tb make payment to Spenee c in
* liferent, for his liferent use only, and to the said William and
* George Spenee equally between them, and to their respective
* heirs and assignees whomsoever^ in fee, of the foresaid sum of
( ^PBOOO,' agreeably to the terms of the missive ; but neither it,
nor any disposition of the property, was ever delivered. Sir John,
however, entered into possession, and regularly paid the interest
of the price. In 1819, one of the sons died without issue, and in-
testate ; and the other son George having been sequestrated in
1824, Ross, the trustee on his estate, advertised for sale, as part of
the bankrupt's property, the fee of this sum of jPSOOO, under bur-
den of the father's liferent The latter thereupon brought a sus-
pension and ifitenfiet, on the ground that he had not divested
himself of the fee of the price of his property ; and he pleaded,
1. That the bond on the one hand, and the disposition on
the other, never having been delivered or put on record, there
was no actual transference of the fee, bnt the rights of the two
parties remained in the state of personal claims against each other ;
and although he might have compelled Sir John to deliver a bond
in terms of the missive, this could not have been done by the
. sons, who were no parties to the transaction, and the stipulation
in whose favour was entirely gratuitous : And,
2. That this being a gratuitous provision in. favour of his sons,
of the nature of a settlement, he might at any time have altered it
by taking a bond from Sir John in different terms ; that the cir-
cumstance of his obtaining their concurrence to the money remain-
ing for eight years certain could not alter the nature of the right,
which was a mere spes successions, and amounted only to this,
that if they did succeed, they would not call up the money till
the expiry of the stipulated period.
The Lord Ordinary found the letters orderly proceeded, and
stated in a note, as the ground of his judgment, that he consider-
ed ( the communication to the sons as of the strongest kind ; for
* it not only made them acquainted with the conveyance in favour
' of the father in liferent allenarly, and of them in fee, but it
' required an actual and present exercise by them of the right
' vested in them under that conveyance, which exercise did take
* place accordingly. This seetoft fair stronger than putting a
' conveyance on record.1 The Court niMftfcikfutfy adhered.
COUBT OF SESSION. 13
Gflartxn,~»If aiattera had steed on the original footing of the
anaasv* » first sent to Sir John Hope, and the father had A&id no-
thing to his son*, a great deal might have been said in favour of the
proposition that' it still depended on the father* will, and that he
• night have agreed wkh Sir John Hope to alter the provisions in
favour of the sons, though I have not particularly attended to that
view, as the facta here are different. But he applied to the
sonsy and obtained their concurrence to the agreement with Sir
John Hope ; and it is of no consequence that no bond was deliver-
ed, as the missives effectually completed the obligation* No doubt,
it was gratuitous on the father's part toward the sons j but he tells
them of the provision made by htm in their favour, without power
of revocation, and causes them to become parties to the contract in
agreeing to let the money lie with Sir John Hope for a number of
years certain 5 and the missives thus completed establish the status
of the whole parties as to this £9000* which the father has no
power to alter, since he is no longer the sole party to the missive*
The other Judges concurred in this opinion, and in holding that the
cases of SommerviUe and of Milter, relative to the revocation of
mortis causa settlements, had no application to the present. *
Suspender's 4utAoritie$.—BaM, Jan. 4. 1774, (77*7); flymon, Nor. SO. 1765,
(11679) ; SommerviUe, May 1ft. 1819, (F. C) j Miller, July 11. 1826, (ante, Vol.
IV. No. 499.)
Charger1* Authorities— \: Stair, 10. 5. and 7» 14; Fairlie, June 11. 1630, (11567);
Trotters, No* 20. 1667, (I I486) ; Borthwick, Jan. SO, 1686, (7735) ; Sinclair, Jane
96. 1707, (11579); Hamilton, Jan. 9. 1741,(11576); Riddell, Jan. 3. 1750,
(11577); Leckie, Nov. 22. 1776, (F. C); Turner's Creditors, Jan. 98. 1783,
(11583.)
N. Grant,— Bitcuie and Millcb,— Agents.
J. Row at, Pursuer.— BaircL No. 10*
Dr. R. Whitehead; Defender. — Skene — W. Bell.
Jmdscml Remit. — After a remit of content to a person of skill, the Court will not
alloir any other mode of oroof, or remit of new to other persona ; nor will they 4
require the person to whom the remit hat been made to reconsider his report,
except on pointed and specific allegations of error, or where he has neglected to
obey the directions of the remit.
Rovat, a wright in Hamilton, having erected a large tene- Nov. 17. 1826.
meot of b6uses for Dr. Whitehead, without any estimate having 2d division.
been previously made, raised an action Tor payment of his account, LordCringietie*
in nrfasom be was met with the -defence of overcharge, both as to B*
the value and measurement of the work done. The Lord Ofdi«
nary, of consent of both parties, remitted to Mr. Wright, an archi-
so
CASES DECIDED IN THE
No. 11.
Nov. 18. 1826.
1st Division,
H.
.No. 12.
Nov. 18. 1826.
1ST Division.
S.
tecfc in Edinburgh, with instructions to make certain investiga-
tions or inspections, and to report. A report was accordingly
given in, to which Dr. Whitehead lodged objections of a vague
and general nature, without specification of any error on the part
of the architect, or any allegation that he had omitted to foUfcw
out the instructions of the remit The Lord Ordinary having
repelled these objections, Dr. Whitehead presented a reclaiming
note, containing a prayer to sustain the objections, and remit of
new to two other skilled persons to report ; but the Court Unani-
mously adhered. *
Loan Pitmilly.— After a remit of mutual consent to a man of skill,
all that I conceive the Court can do, is to remit to the same person
to reconsider his report } for I hold that such consent precludes
parties from resorting to any other mode of probation, even on pay-
ment of previous expenses j and while in the Outer House* I al-
ways stated this to parties before nominating such a person. The
only question here, therefore, is, whether such a case has been
made out as to induce us to remit again to Mr. Wright to recon-
sider his report ? And I do not think that there are any such spe-
cific objections, or allegation of omission of duty on the part of Mr.
Wright, as to warrant this.
Loan Alloway was of the same opinion.
Lord Justice-Clerk.— I entirely concur in the general views which
k have been stated, and which I consider to have been sanctioned by
the House of Lords, in regard to a report of Mr. Telford, in the
case of Dixon v. the Monkland Canal Company.
Loan Glenlee concurred.
J. Sinoeb, W. 8.— -Anderson and Whitehead, W. 8.— Agents,
James Doeg, Pursuer.— -i. Wood.
D. M'Donald and Others, Defenders. — Stark.
Decree of cessio, in special circumstances, refused in hoc statu.
R. Paul, W. S*—G. I. Ure, W. S— Agents.
■
A. Wilson, iPurfcuer.— JMTNeiU.
G. Miller, Defender. — Ivory.
Decree of cessio refused in hoc statu.
J. M'Cracken,— J. Hamilton, W. S. — Agents.
* The Second Division, on this and several former occasions, disapproved of the
practice of framing reclaiming notes in the form of a petition, and concluding with
a prayer ; and it was announced that in future a fine would be imposed, in the event
of notes being lodged in such a form. The First Division, on the other hand, have
objected to reclaiming notes which have not a prayer pointing out what is craved.'
i
COURT OP SESSION. 21
J. Lang, Raiser of Multiplepoinding. — Pyper. No. 13.
A. Reid and J. Monach, Claimants.— Brown.
Jfetey^potWiiif .~Hdd,— l.~Tbat the holder of a fund as trustee for creditors,
having raised a multiplepoinding, and called certain parties as creditors of the
common debtor, is not entitled to dispute their title to appear and object to
his condescendence of funds ;— and,— 2. That he is not entitled to deduct from
the sum to be consigned payments made to the debtor for aliment, without au-
thority of the creditors.
Lang, as trustee for the creditors of All wood, held a property Not. 18. 1836.
in Glasgow, for the purpose of selling it, — lodging the amount 2o Divi8iow.
in a bank till the rights of the several creditors should be de- Lord Macken.
termined, — and thereafter dividing the fund among them. After «e-
drawing the rents for a few years, he sold the property, and F'
brought a multiplepoinding as to the disposal of the price, in
which he called Reid and Monach as creditors of All wood.
These persons subsequently gave in a claim, and objected to
the condescendence lodged by Lang that it did not include the
rents, and that it deducted from the price admitted to have been
received, certain payments made by Lang to Allwood, without
authority from the creditors.
To this it was answered,
1. That Reid and Monach had produced no evidence of their
being creditors, and at all events that their debts would be found
on inquiry to be extinguished, and therefore that they had no
title to make the objections.
2. That the rents were not included in the summons, and there-
fore did not require to be condescended on : And,
3. That the payments to Allwood were for his subsistence.
The Lord Ordinary pronounced an interlocutor containing seve-
ral findings,. and ordering Lang to give in a condescendence of the
price and rents agreeably thereto, without deduction of the sums
paid to Allwood ; and the Court, on a reclaiming note by Lang,
adhered, so far as to find * that the pursuer is bound to consign
* the price of the subjects sold, deducting only the expenses of the
* titles, and that with interest thereon, in terms of the trust-deed/
— * reserving to the defenders to bring an action for payment or
( consignation likewise of the rents of these subjects, and interest
' thereon, and to the pursuer his defences, as accords/
The Court were of opinion that Lang having called Reid and Mo-
nach, could not object to their title to appear, their right to claim
being the subject of discussion at a future stage ; that the renta
not being included in the summons, consignation of them could
not be ordered ; but that the whole balance of the price must be con-
signed, without deduction of sums paid by Lang without authority.
J. Lang, W. S J. and W. Jollie, W. 8— Agents.
SS CASES DECIDED IN THE
No. 14. W. White, Purtuer.— Cocfctor*— Rutherfurd.
R. B ale aktyke, Defender.— Sol.-Gen. Hope— Anderson.
Judgment qf Howe of Lords, Qmttrvdion oj.—k party haying made a deed of
settlement, conveying hia whole heritage, and particularly two pieces of land ;
and it having been found by the House of Lords, that although he was facile, yet
he had a capacity to dispone, provided he were sufficiently informed as to t he
nature of the deed, but that he had not been bo as to the lands ; and having set
aside the deed quoad the lands \ held not competent to extend the judgment to
other heritable subjects.
Nov. 21. 182& ' William White, the nephew and heir at law of the late John
1st Division. Dalgleish, brought an action of reduction of a disposition and
Lords Balgray, deed of settlement which Dalgleish had executed on the 3d of
CrMgedwyn?nd February 1808, and by which he conveyed to the defender Ro-
ll, bert Ballantyne his whole heritable subjects ; and further, and
without prejudice to the general conveyance, « all and whole these
* two pieces of land, the one lying in the Bridgelands of Peebles,*
&c, * and the other lying in the Kirklands of Peebles,' &c Be-
sides these two pieces of land, Dalgleish held an heritable bond
over a house in Edinburgh, and a servitude of pasturage over
the commonty of Cademuir.
In support of this action, White stated that Dalgleish had,
from his earliest years, been afflicted with mental imbecility,. and
was unfit to manage his own affairs: — that he had been originally
a herd, and had at one time obtained by means of his friends a
farm, but was found to be unable from mental incapacity to at-
tend to it : — that his brother, who was a clergyman, and was pos-
sessed of considerable property, became desirous that he should
be placed in a situation where he might be properly attended to,
and that accordingly he was boarded in the house of Ballantyne
at Dry hope: — that, by the death of his brother the clergyman,
John Dalgleish succeeded to the above subjects, and to personal
ftuids, amounting in all to about «£7000: — that while he was re-
siding with the defender Ballantyne, a Mr. Cairns, who was it
writer, was sent for to make out Dalgleish's deed of settlement,
and that Dalgleish had given written instructions that the land
should be conveyed to David Ballantyne, whereas the deed had
been made out in favour of the defender Robert Ballantyne :—
that as it was not agreeable to his intention, it could not be
regarded as bis deed of settlement; and as he must be thus held
to have died intestate quoad hoc, the land fell to White as his
heir at law. He therefore concluded that, the deed being reduced,
the defender ought to be ordained ' to pay back to the pursuer
* the rents, mails, and duties of the lands thereby disponed, in so
' far as the same have been or may be intromitted with by him,
COURT OF SE8SION. 2S
' as well as the annual rents of any heritable bonds or heritable
« property of any kind, to which he may have pretended to have
' acquired right, in consequence of the said disposition and as-
* agnation,' &c*
The instructions which were written by Cairns, in the course
of a conversation with Dalgleish on the subject of his settlement,
were in these terms : — * John Dalgleish appoints Mr. Ballantyne
' of Phaap his executor, burdened with his debts and funeral ex-
< penses,— the land to Mr* David Ballantyne,— jPIOO to William
* White, baker, London;9 and then there followed a number of
legacies of the same amount to different parties, * with jPSOO to
4 Mr. David Ballantyne, besides the land.9 Cairns then made out
and extended the deed of settlement; but the land, instead of being
conveyed to David Ballantyne, was disponed to the defender Ro-
bert.
In defence against this . action it was stated, That although
John Dalgleish was somewhat weak in his intellects, yet he was
perfectly capable of making a valid deed >— that the reason why
Cairns had hot framed it according to the jotting was, that he
had not the title-deeds at hand, nor more than one sheet of
stamped paper, which would have been necessary, if a separate
disposition of the lands had been executed : — that as the defender
was nominated the executor, Cairns made out the deed gene-
rally in his favour, burdened with the legacies, and explained to
John Dalgleish that he would take a back letter from the de-
fender, binding him to convey the lands to David Ballantyne ;
and that accordingly, on the 17th September 1808, the defender
addressed the following letter to John Dalgleish, and delivered
it to Cairns:— ' As I understand that by disposition and assigna-
c taoo, dated the Sd day of February 1808, granted by you to me as
' executor, with the burden of certain legacies therein mentioned,
' you also dispone to me all and whole these two pieces of land,
* the one lying in the Bridgelands of Peebles, and acquired by
* your brother, the late Dr. Dalgleish, from John Deans, and the
* ether lying in the Kirklands of Peebles, and likewise acquired
' by him from John Baird, bounded and described as particularly
* mentioned in the title-deeds thereof; and as you declare that it
* was your intention to have disponed these two pieces of land to
' David Ballantyne, my brother, but which could not be properly
' cbne at the time for want of the tjtle-deeds to give a particular
' description of the lands, I hereby bind and oblige myself and
4 my heirs, if the disposition and assignation granted by you to
4 me stands unaltered at your death, to grant to the said David
4 Ballantyne, immediately on dial event, a valid disposition to
24
CASES • DECIDED IN THE
' said two pieces of land^ in order that your intentions may be
' fulfilled. I am/ &c. Lord Balgray, after allowing a proof,
having reported the case, Nthe Court, on advising informations,
repelled the reasons of reduction, and assoilzied the defender.
White having appealed against this judgment, the House of
Lords, on the 17th June 1817, ordered and adjudged, ' That it
is established in this cause that John Dalgleish was of under-
standing and capacity sufficient to enable him to execute a set*
tlement of his property, if he should be duly and fully informed
of the nature and effect thereof; and it is ordered that, with this
declaration, the cause be remitted back to the Court of Session
in Scotland to review the interlocutors complained of in the
said appeal, having regard to all the circumstances of this case,
and having more especial regard, as far as the Court's forms of
proceedings will admit, to the facts and circumstances following,
viz. To jhe fact. that. the jottings respecting John Dalgleish's
settlement, contain the following, words : — i The land to Mr.
' David Ballaotyne,' and < JP800 to Mr. David Ballantyne be-
' sides the brad ;' — the fact that the settlement, nevertheless, con-
taining a disposition of £300 to David Ballantyne, contains no
disposition of land to him ; — the fact, that the reason given by
Mr, James Cairns, in his testimony why he made the disposition
of the heritage general is, that he had not at that time by him
John Dalgleish's title-deeds ; — the fact, that the description of
the two pieces of land described in the.letter of September 1B08,
herein after mentioned, is, nevertbelesss, nearly in the very same
words as those which contain the description of two pieces o£
land described in the settlement of February 1808 ; — the fact,
that the settlement, the validity of which is in question in this
cause, bears date on the 3d February 1808, by which lands,
and those, two pieces of land, are given not to David, but to
Robert Ballantyne; — the fact, that the letter addressed by
Robert to John Dalgleish, containing the obligation to grant
the two pieces of land to David Ballantyne, does not bear date
till September 1808, although the settlement bears date in Feb-'
ruary 1808, being more than seven months after the date of
the settlement ; — to the circumstance, that it seems to be totally
unexplained for what reason no such letter was written until
the month of September, although the settlement was exe-
cuted in the previous month of February; and to the cir-
cumstance, that it does not seem to appear how. far John Dal-
gtaik was or was. not informed of what would have been the
effWfof the settlement of the month of February, in case his
death had happened before the month of September; and it ia
COURT OF SESSION. 25
1 further ordered, that, after reviewing the said interlocutors, the
' said Court do and decern as to the Court shall seem meet/ In
consequence of this remit. Lord Cringletie (before whom the case
now came) appointed Ballantyne to give in a condescendence of '
what he averred, in explanation of the circumstances stated in the
judgment of the House of Lords. In that condescendence he in
substance gave the same statement as he had formerly done, which
he offered to prove by the evidence of Cairns. On advising that
condescendence, his Lordship reduced and decerned in terms of
the Kbel.
Against this judgment the defender reclaimed, and the Court
thereupon remitted to the Lord Ordinary to allow a re-examina-
tion of Cairns, and a proof of the condescendence by other wit-
nesses. This having been done, his Lordship reported the case
to the Court ; and their Lordships, on the 26th of May 1819,
* having considered the whole cause, and having regard to the
4 whole circumstances of the case, in terms of the remit from the
( House of Lords, and especially to the several circumstances
' specified in the said remit/ repelled the reasons of reduction,
and assoilzied the defender.
White having again appealed, the House of Lords * ordered
' and adjudged, that the said interlocutor complained of in the
4 said appeal, so far a* it repels all the reasons of reduction alleged
4 by the appellant, and assoilzies the respondent from all the con-
4 elusions of the appellant's libel, and finds the appellant liable in
4 die expenses of process, and all the directions consequent there-
c upon, be, and the same is hereby reversed ; and it is declared,
c that the disposition contained in die instrument under reduction,
4 so far as it imports to dispose of any interest in the lands therein
4 mentioned for the benefit of the respondent,his heirs and assignees,
4 was contrary to the intention of the said John Dalgleish, as ex-
4 pressed in the jottings made by James Cairns, when he took in-
4 structions from the said John Dalgleish for preparing such in-
4 stniment; and that the instrument, purporting to be a letter
4 from the respondent, dated Dryhope, 17th September 1806, and
4 signed Robert Ballantyne, cannot, under the circumstances, be
4 deemed an instrument affecting the disposition of the said lands
4 contained in the instrument under reduction ; and that, there-
4 fore, such instrument under reduction, so far as the same im-
' porta a disposition for the benefit of the respondent, his heirs and
' assignees, ought to be reduced, without prejudice to any ques-
* tkm with respect to the several charges imposed on such lands
4 by the said instrument, in case the other property of the said
* John Dalgleish shall prove not to be sufficient to satisfy such
£6 CASES DECIDED IN THE
< charge*; and therefore k is ordered and adjudged, that audi
' instrument so under reduction be, and the same is hereby re*
* duced, so far as the same imports any disposition of a beneficial
' interest in' the said lands to the respondent ; without prejudice,
' nevertheless, to any question which may be raised with respect
' to the several charges imposed on such lands by the said instru-
' ment so under reduction, in case the other property of the said
< John Dalgleish, disposed of by such instrument, shall prove
' not to be sufficient to satisfy such charges; but that such bene*
* ficial interest (subject to such claim as aforesaid) ought to be
c considered as not disposed of by the said instrument, and as
* having therefore descended to the appellant, as heir of the said
c John Dalgleish, subject to any charges which may affect the
' said lands, independent of the disposition contained in the said
* instrument : And it is further ordered and adjudged, that the
' said cause be remitted back to the Court of Session in Scotland,
* to do therein as shall be consistent with this judgment* and bb
* shall be just.'*
White then presented a petition to apply this judgment, and
this having been done, and a remit made to Lord Medwyn to pro-
ceed in the case, he contended that he was entitled not merely to
the two pieces of land, but also to the heritable bond and the ser-
vitude of pasturage which had belonged to Dalgleish, and fell
under the general conveyance in favour of the defender In sup-
port of this demand he maintained,
1. That as the defender had been assoilzied entirely in this
Court, and the House of Lords bad reversed that judgment, the
deed of settlemept had of secessity been set aside entirely ; and
therefore, as heir at law, he was entitled to the whole heritage
which had belonged to Dalgleish.
£. That supposing the judgment of the House of Lords
could not admit of this construction, still, as it had been thereby
found that the deed of settlement did not contain the true ex-
pression of the will of Dalgleish, he must be considered to have
died intestate, and therefore that his whole heritable subjects fell
to the pursuer.
To this it was answered*
. 1+ That the judgment of the House of Lords applied ^exclu-
sively to the two pieces of land, and not to the servitude and be-
i£tat>le bond :— tbftt there had been no total reversal, but merely
a finding* that, in relation to the lands, Dalgleish had not been
• See 1. 8baw'« Appetl Caves, p. 473.
COURT OF SESSION. «
sufficiently informed of the nature and effect of the deed of settle-
ment : — that it having been finally decided that he was of suffi-
cient capacity to make a deed of settlement, provided he were in-
formed as to the effect of it, and the House of Lortls having
merely found that he was not so, informed as to the lands, it was
not competent to extend the judgment beyond these two specific
subjects: And,
5L That there being no reversal to any greater extent than the
lands, the decree of absolvitor must be held to remain in force
quoad ultra, and therefore the pursuer could not insist for any
thing mere than the lands*
The Lord Ordinary found, « That the judgment applies only
« to the two pieces of land in the Bridgelands and Kirklands spe-
' eially mentioned, which seemed to be the lands referred to in
' the said judgment, under the terms of * the lands therein men-
" tkmed,* — c the said lands contained in the instrument under re-
« duction ;* more especially when taken in connexion with * the
" instrument purporting to be a letter from the respondent, dated
" Dryhope, 17th September 1808 ;' and that it does not include
* the heritable-subjects, which the pursuer now claims in virtue
' of the partial reduction of the deed in the defender's favour ;
* and therefore that the pursuer is not entitled to any decerniture
* against the defender relative to these subject*' To this inter-
locutor the Court, on advising Cases, adhered.
Loan Balgray- — When this case was originally before me, I was of
opinion that Dalgleish was destitute of the power of making a settle-
ment ; but the Court held that the deed was good, and therefore
they amflzied the defender. The House of Lords have found, not
mat he was incapable of making a settlement, but that be was of
capacity to do eq, provided he were duly informed of the
and effect of. .it. In applying this principle, however, they
has* farad merely that he was not duly informed as to the effect of
it islatire to the two pieces of land, and quoad hoc tjhey have re-
versed the judgment, so that the decree of absolvitor remains effec-
tual quoad ultra. It is impossible, therefore, in construing the judg-
ment of the House of Lords, to apply it to any other heritable sub-
jects than these two. pieces of land. -
Lord President. — I am entirely of the same opinion. If the House
of Lords had made use of the words ' heritable subjects' or * heritage/
not only the lands, but the subjects now demanded would have been
included. Hie judgment, however, is confined to lands, which can*
not include an heritable bond and servitude. Suppose, for example,
that a party disponed certain lands, mortis causa, to one who was not
In heir, without any mention of other heritable subjects, it is
28 CASES DECIDED IN THE
that the conveyance would be held as limited to lands, and that the
heir-at-law would take up the other heritable subjects. On the same
principle, in construing this judgment, we cannot extend the words
' these lands' to the heritable bond and servitude.
Lord Gillies. — I am of a different opinion. It appears to me, in
the first place, that the judgment of the -House of Lords must be
considered as a total reversal of that pronounced by this Court ; and
it will be observed particularly, that there is no affirmance of it In
the second place, that judgment amounts to this, that the note of in-
structions is. rather to be regarded as expressing the will of Dalgleisk
than the deed of settlement itself. By these instructions, no right
whatever to heritable subjects is given to the defender ; on the con-
trary, he is appointed executor, which is exclusive of the idea that
he is to have right to the heritage. But if so, then the pursuer, as
the heir-at-law, must have right to the heritable subjects which he
now claims*
Lord Craigu. — I condor in the opinion of the majority of the Court.
Defender* i Authorities.— Scott, March 2. 1803, (No. 8. Ap. Tack) ; Geddes, Feb.
16. 1816, (F. C.)
W. Douglas, W. S. — Cranstoun and Anderson, W. S. — Agents.
No. 15. William M'Donald, Suspender and Pursuer. — Jameson —
Graham Bell.
David Jackson and Others, Chargers and Defenders. — #SW.-
Gen. Hope — Marshall.
Quinquennial Prescription,— Circumstances under which a plea founded on the
quinquennial prescription was repelled.
Nov. 31. 1826. The sole question in this cage was, Whether certain claims
1st Division. ^or arre*rs of rent, made by M'Donald against the defenders,
Lords Alioway had been judicially stated in compensation of a claim by them
and Eidin. jn a proce8S before the Sheriff of Perth, within five years from
their removal from a farm of which they had been tenants?
To constitute this claim, after decree had been prorfounced against
him in the above process, M'Donald brought an action against
them for these arrears. In defence, they rested on the allega-
tion that more (ban five years had elapsed from the time of their
removal, and therefore that the claim was cut off by the quinquen-
nial prescription. The Lord Ordinary having assoilzied them,
M'Donald reclaimed, and the Court, on advising a condescend-
ence, c in regard to the period or periods of removal of David and
. 'Margaret Jackson, or their subtenant or subtenants, and also as
* to the period or periods when he first stated his claims for ar-
COURT OF SESSION. 29
' rears of rent/ found that he had judicially demanded them be*
fore the Inferior Court within five years from the term of re-
moval, and therefore repelled the plea of prescription, and re-
mitted to the Lord Ordinary to proceed accordingly.
J. Smyth, W. S— - Limning and Niven, W. S. — Agents.
J. Wightmax, Suspender. — ATGachen. No. 16.
T. Bonab, Charger.— FT. Bell.
Reclaiming note against an interlocutor of the Lord Ordi- Nov. 21. 1826.
nary refusing a bill of suspension, refused in respect of no ap- 2d Division.
pearance by the party reclaiming. Bill-Chamber.
Lord Robert-
son.
T. Small, — J. Bhown, W. S. — Agents.
.
A. McAllister, Suspender. — Forbes. No. 17*
R. Gjffin, Charger. — Marshall
Interlocutor refusing bill of suspension of a charge on a Nov. 31. 1886.
bill of exchange, adhered to. 2d Division.
Bill-Chamber.
J. BROWN, W. S«— C. SpkNCR,— Agents. Lord Macken-
zie.
B.
J. M'Lean, Suspender. — Skene — Neaves. No. 18.
W. Simson, Charger.— W. Bell.
Interlocutor refusing bill of suspension of a judgment of Nov. 21. 1826.
the Sheriff of Argyll, adhered to. 2d Division.
Bill-Chamber.
N. W. Robertson,— J. Malcolm,— Agents. Lord Pitmiiiy.
B.
Sir Henry Stkwart, Pursuer. No. 19«
C. J. M'Donald, Defender.— Skene.
Title to Purgue— Executor.— Probate of a will and letters of administration taken
out from an English Prerogative Court by the survivor of three executors no-
minated in an English will, held a sufficient title to pursue in a Scotch Court,
although the executor had no residuary interest under the will,— he always cod-.
finning before extract.
Sir Hemry Stewart, as survivor of three executors ap- Nov. 21. 1826.
pointed by a will executed at Calcutta by the late Archibald 3d division.
Sefcon, having taken out a probate and letters of administration Lord Macken.
from- the Prerogative Court, of Canterbury,, raised an action ££
80 CASES DECIDED IN THE
against M'Donald for the contents of a bill due to the deceased, and
payable in Edinburgh* M'Donald pleaded as dilatory defences,
1. That ad the executors appointed by Seton's will were not
residuary legatees, but tnerely executors in trust for those baring
interest under the will, a probate obtained from an English Prero-
gative Court was not a sufficient title to pursue in Scotland : And,
2. That, at any rate, by the law of England, (as they averred,)
the survivor of a number of executors was not entitled to take out
a probate, unless there was an express devolution on the survivors,
which was not the case here.
The Lord Ordinary repelled these dilatory defences, and found
* that the probate and letters of administration produced by the
* pursuer afford a sufficient title to pursue, the pursuer always,
' in case he shall be successful, confirming before extract ;' and
the Cdurt, after bearing the counsel for M'Donald, unanimously
refused a reclaiming note for him, but awarded no additional ex-
penses, in respect that no appearance was made on the part of the
pursuer.
The Court were agreed that the condition of confirming before ex-
tract afforded sufficient security to the defender, and that the title
to pursue was settled by the cases of Wardlaw, June 21 • 1715,
(4500), and Clerk, Dec! 20. 1759, (4471), which had been re-
ferred to by the Lord Ordinary.
Lockhart and Swan, W. S.— H. Macqucxv, W. 8.— Agents.
No. 20* Duke of Hamilton, Smipendet.^Thomson—Fullerton.
A. D. R. C. W. Baillie, Charger.— D. cfF. Moncreiff— Ivory.
Entail — Superior and Va*ial.— Bill of suspension passed as to the questions,—*
] . — Whether an heir of entail, succeeding in virtue of the forfeiture of a prior
heir, is entitled to an entry as an heir, or' as a singular Successor ; and,— 2.— Whe-
ther, where the entail has been recognised by a former superior, to whom the
present one has succeeded as an heir of entail, the latter can be affected by that
acknowledgment.
Nov. 513. 1826. By the entail of Lamington it is provided, that the whole heirs
1st Division. °f tailzie ' shall keep, assume, bear, wear, and use the surname
Bill-Chamber. ' and arnls and designation of Baillie of Lamington, without any
Lord Craigie. < alteration, as their own proper surname, arms, and designation
• in all time coming,' under the penalty of forfeiture, and' that
the next heir of tailzie should succeed as if the contravene? were
naturally dead. Of these lands the Duke of Hamilton was su-
perior* and in 1774 a charter of resignation, containing the whole
series of heirs of entail, was executed by Douglas Duke of HamiU
ton* ia virtue of which titles were made up. The present Duke
GOUJLT OF SE88ION. 81
his estate9 and the superiority of Lamington, as an heir
of entail, and did' not represent Duke Douglas in any other cha-
racter*
On the death of Lady Ross Baillie, the last heir of entail in
possession of Lamington, the estate ought to have descended to
Sir Charles Augustus Ross of Balnagowan, who was her heir at
law, and also the next heir of tailzie. There was, however, a
similar clause in the entail of Balnagowan ; and he having made
his election of that estate, the charger, who was the next heir of
tailzie after him, obtained decree of irritancy against Sir Charles,
and finding that be was entitled to succeed to Lamington. He
was then served heir of tailzie, and demanded an entry from the
Duke of Hamilton in that character. The Duke did not object
to give him an entry, but insisted that he should pay a year's
rent as a singular successor, or that the claim should be reserved.
This being refused, his Grace presented a bill of suspension, in
support of which he maintained,
1. That the charger was not the heir at law of the late Lady
Ross Baillie, the person last infeft, nor was he the next heir of
the investiture, and therefore that he must be regarded as a
singular successor, and so liable to pay a year's rent : And,
2. That although Duke Douglas had recognised the series of
heirs contained in the entail, yet there was a reservation of * his
* Grace's own right, and the right of all others, as accords ;* and
that, at all events, the suspender did not represent Duke Dou-
glas, and could not be bound by any deed done by him injurious
to the other heirs of entail. •
To this it was answered, That the charger was the heir of the
investiture ; and as the entail had been recognised by the proper
superior, in whose place the suspender stood, he was entitled to
an entry in that character.
The Court, on the report of the Lord Ordinary, considering
the question attended with much difficulty, and particularly as to
whether the suspender could be affected by Duke Douglas's ac-
knowledgment, passed the bill
Charger'* jk\tkaritie$.— Lockout, July 10. 1760, (15047); Mackenzie, July 4.
1777, (No. 8. Ap. Sop. «odV«tt.); D«ke of Argyll, Nor. )& 17K, (16068);
2. Ersk. 7. 7; Hill, Jan. 17. 181*; aandford* 362.
L Rothsrpord, W. &— J. Thomson, W. S— W. Forbes, W. S—
Agents. '
0
\
32 CASES DECIDED IN THE
No. 21« Jane Smith, Advocator. — Sol-Gen. Hope — Baird.
Walter Logan, Respondent. — Jameson — A. AfNeill.
Proof- <jiecount»'Book$. — Held that private bodies kept by a partner, containing,
among numerous other entries, memoranda relatnre to the affairs of the company,
but which it did not appear had ever been seen by the other partner, could not
be admitted as evidence against the representatives of the one partner in an ac-
counting at the instance of the executrix of the other.
Nov. 23. 1826. The late John Maxwell and Archibald Smith were for several
*r years partners as writers in Glasgow. No regular books were
Lords Alloway kept, and on the death of the partners, matters were found to be
and Eldin. m much confusion, and disputes took place between their respect-
ive representatives. Miss Smith, as the executrix of Archibald
Smith, then raised an action before the Sheriff of Lanarkshire
against Walter Logpn and others, the representatives of Max-
well, concluding for i?765 : 13 : 9$, as the balance due to Smith
by Maxwell, both as a partner, and for advances of cash made
on his private account. On the other hand, Logan and others
brought an action of count and reckoning before the same Court
against Miss Smith, concluding for i?£000 as the balance due
by Archibald Smith. A great deal of procedure ensued ; but
the chief question related t6 the admissibility of certain books
which had been kept by Smith as evidence against the repre-
sentatives of Maxwell. On the one hand, it was alleged by
Miss Smith that these books belonged to the company, and that
they contained several entries relative to the transactions of the
. company, and therefore must bear evidence in any question be-
tween the partners ; while, on the other hand, the representatives
of Maxwell stated that they were private books of Smith — that
the entries were of a miscellaneous nature, and were plainly mere
. % memoranda for Smith's own use, and therefore could not be ad-
mitted as evidence in favour of his executrix. The Sheriff, after
allowing a proof as to their nature, found, ' That the account-
' books produced are not sufficient of themselves to establish the
' articles therein contained, and are not sufficiently supported by
' the pursuer's proof,' and remitted to an accountant ' to make up
' a state of the accounts betwixt the parties upon the company
' books, and other evidence in process ; in conformity, however,
* to the terms of this deliverance as to the account-books above
' mentioned.'
' On advising a report by the accountant, the Sheriff assoil-
zied the representatives of Maxwell from the action at the in-
stance of Miss Smith, and decerned for a balance in their fa-
vour. Of this judgment Miss Smith brought an advocation, in
COURT OF SESSION. 83
Lord AUoway found c that there is no reason to suspect
' that the books kept by Mr. Smith had not been fairly kept
( by him in the office, and subject to the inspection of Mr. Max-
' well whenever he chose to look at them ;' and he remitted, be-
fore answer, to an c accountant to prepare a report of the state of
* accounts betwixt the parties, in which he will give such credit
' to the books in question as he shall consider them entitled to/
It having been afterwards explained that this was not to be con-
sidered as a judgment finding that the books were to be regarded
as company books, the case was sent to the accountant, who re-
ported that a large balance was due by Maxwell's representatives.
This was chiefly supported by the above books; and Maxwell's
representatives then objected to the report, and contended that
as there was no evidence that they were company books, and as
it appeared from inspection of them that they contained mere
private jottings of Smith, they could not be founded on by his
representatives as evidence in their favour to any effect.
Lord Eldin found, that ' the said books ought not to be re-
* ceived as evidence in the accounting,' and remitted to the ac-
countant to amend his report accordingly.
Against this judgment Miss Smith reclaimed ; -and the Court,
on advising Cases, being satisfied that they could not be regarded
as company books, adhered.
Lord Gillies. — I think the interlocutor is right — an opinion which
I entertain, not as an accountant, but as a lawyer. The hooks
are clearly proved to have been merely the private books of Smith ;
and the question is, whether he, if in life, or his representatives
after his death, can found upon them as evidence in their favour to
any effect. If they had been company hooks, I could not have con-
curred hi the interlocutor, because such books afford evidence against
all die partners, seeing that they are open to their inspection at all
times. So far, indeed, is this principle carried in England, that it
has there been decided that an entry made by the waiter of a cw&
in the books of the club was to be considered public, and so bind*
ing on all the members. ' But the books in question are entirely pri-
vate, and all the items which have been sustained rest on no other
evidence.'
Lord President. — I am of the same opinion* The books were
plainly made up by Smith for a mere temporary purpose. Perhaps
he intended that the entries should go into the company's books;
hut this was not done, and there is no evidence that Maxwell ever
saw them.
Loan Balgray. — I also think the interlocutor right. The articles
alleged to be proved by these books consist chiefly of lent cash,
which can only be proved by. the writ or oath of the borrower. The
vol. v. c
34 CASES DECIDED. IN THE
question therefore is, whether faa* books, which are written by
South, the alleged lender, are sufficient to*prsre the ban* It appears
to me. that they are mere loosn memoranda— that -there is no evi-
dence that Maxwell ever saw them, or that they are of such a na-
ture that he was bound to look at them ; and therefore I think that
we ought to adhere.
Lord Craigie.— I am disposed to agree with Lonl Alloway rather
than with Lord Eldin. The books are entitled to some weight in
the accounting, although not per se conclusive. It is true that a
loan can be proved only by the writ of the borrower ( but the advan-
ces here appear to have been made as inter aocios, and not as proper
loans.
Huhtbe, Campbell, and Cathcart, W. S— D. Bfcoww, W. S<—
Agents.
No. 22. Geoece Mackay, Pursuer.— FuUertoit—G. G. BdL
D. Mo nil ay, Defender.— CocA&dm — Rutheifufcl
Iftie to Pursue— Multiplepoinding—Ues Judicata.— Circumstances in which it was
held that a party founding on an unstamped and Improbative document of debt
alleged to hare been obtained by fraud, and who had been called in a process of
mnltiplepoinding, was entitled to pursue a reduction of a decree of preference
In hie absence, and that such decree did not form a res judicata.
*
Not. 23. 1826. T he defender Jtbarray having lent «£880 to one Munro, re-
r ceived from him ap unstamped improbative acknowledgment and
Lord Macken- obligation ftr repayment, with interest This having come into
srie. the hands of Mackay f Murray's son-in-law, with a mandate in-
dorsed on it, bearing to be signed by Murray, but not holograph,
and ordering payment to be made to Mackay » the latter delivered
it up to Munro, and obtained in return another unstamped impro-
hative document, whereby Munro bound himself to pay the money
to Mackay. Murray, however, having alleged that the original
document had been fraudulently abstracted from his repositories,
and his name forged to the indorsation, Munro brought a multi-
plepoinding, in which he called both parties, In order to ascertain
to whom he should make payment. In this process a claim was
lodged for Murray, but none was given in for Mackay, and de-
cree of preference was accordingly obtained in favour of the
former. Some time thereafter Mackay raised the present action
of reduction of this decree as in absence, concluding also for re-
petition of the jP880 from Murray, if paid by Munro ; or far pay-
ment by the latter, if still in his hands.
To this action, besides his defences on the merits, Murray
pleaded as dilatory defences,
F.
COUfet dfc SESSION. 86
1. That the decree in his favour formed a res judicata, and he
alleged that appearance had been made by counsel for Mackay in
the multiplepoinding.
&. That the missive from Munro, being unstamped and impro-
bative, could not be founded on in a Court of Justice ; and,
& That the indorsation of the original document of debt, even
if not challenged as false, was inept to transfer the right to it,
seeing that such a debt could not pass by simple indorsation.
To this it was answered,
1. That the markings on the process proved that no appearance
had been made by Mackay ; and that although a decree in a mul-
tiplepoinding, in so far as regarded the raiser, was equally good
as to these who did, and those who did not make appearance, yet,
in so far as regarded the several claimants, a decree of preference
in absence was exactly in the situation of any other decree in ab-
2. That the decree being thus liable to be opened up, parties
were now in the same circumstances as if a claim had been ori-
ginally lodged for the pursuer in the multiplepoinding, in which
case his missive from Munro could not have been objected to
by Murray as unstamped and improbative, seeing the document
on which he himself founded was liable to the very same objec-
tion; and,
8. That although the indorsation rtiight not have afforded a
title to compel Munro to make payment, yet it was a sufficient
warrant to authorize him to pay, which, indeed, the mere pos-
session of the original document would have been ; that, besides,
as Munro had granted an obligation in consequence of it, and of
the delivery of the original document, the transference was properly
effected ; arid that, at all events, the pursuer had a sufficient title
to pursue reduction of a decree pronounced in a process in which
he had been called as a party.
The Lord Ordinary, with certain special findings, found ' it
€ necessary for the defender to plead his other defences ? and the
Ccnirt, while they recalled, in hoc statu, the findings in the Lord
Ordinary's interlocutor, as going in some measure to decide points
which were likewise involved in the defences on the merits, re-
pelled ihb plea of res jiUdicata, sustained the title to pursue, and
remitted to the Lord Ortfinfery t6 proceed accordingly.
Low and Ru*s**poed, W. &— R. Rot, W. S— Agefife.
36 CASES DECIDED IN THE
jfo. 23. A- an^ «*• Hobskfall, Advocators.— More.
J. Vietue and Company, Respondents. — D. Maefhrlane.
Qmpo*ition-Contract.—HM that, on a bankrupt failing to pay a composition under
an extrajudicial contract, the original debt revives.
Nov. 24. 1826. Virtue and Company entered into an extrajudicial composi-
1 st Division tion-coritract with their creditors, by which sthey agreed to pay
Lord Eidin. them 6s. 6d. per pound on their debts, at six, twelve, and eighteen
S. months from the 1st of September 1821. A. and J. Horsefall
were creditors for £500, and received three bills, each for £54.
Ss. 4d., being the amount of the composition .payable on their debt
at the above dates. Virtue and Company retired two of the bills, but
they failed to pay the third. That bill bore to be for ' a third
* and last instalment of 2s. 2d. per pound in a composition of 6s. 6d.
< in the pound on a debt of £500 sterling due to them (Horsefalls)
* by us, as guarantee for William Hilliard's intromissions with
' them to that extent in full.' Virtue and Company then granted
a new bill to Horsefalls in these terms : — ' Twenty days after date,
« we promise to pay Messrs J. and A. Horsefall, or order, at our
' warehouse here, £56. 8s. sterling, value received.9 It was admit-
ted that this bill was granted for the amount of the composition,
, with interest, for which the former one had been accepted. Virtue
and Compahy having failed to pay this bill, and their estates
having been sequestrated, Horsefalls lodged a claim for their
original debt of ^500, with interest thereto, under deduction of the
two composition-bills which had been paid. This claim was received
by the trustee, under a reservation of all objections to it. The se-
questration was terminated by a composition-contract, by which
Virtue and Company agreed to pay 2s. 4d. per pound on the debts
due by them as a company, and Id. per pound as individuals. Hav-
ing objected, however, to pay a composition to Horsefalls on any
larger sum than £56. 8s. at certain distant dates, they raised an ac-
tion before the Sheriff of Edinburgh, concluding for payment ' of
' the sum of £5% : 12: 6 sterling, in equal proportions, at the dates
* before mentioned, being the composition of 2s. 4d. sterling' on
the sum of £i51 : 1 : 8, and also for £1 : 18 : 2, as bong the com-
position of Id. per pound.
In defence against this action, Virtue and Company contended,
1. That by the extrajudical composition-contract the original
debt was discharged, and that it could not be revived by their
failure to pay the composition ; and therefore that Horsefalls were
only entitled to draw a composition of 2s. 4d. on the sum of £56.
8s., being the amount of the renewed bill ; and,
2. That as Horsefalls had agreed to receive die second bill of
COURT OF SESSION. 37
£56. 8b. in liquidation of the one for £M : 8 : 4, a new and separate
debt had been created; and as the latter bill had been completely
itanovated and discharged, the plea of the original debt reviving
by a failure to pay the composition could not be maintained.
To this it was answered,
1. That the extrajudicial composition-contract was made on the
implied condition, that if the composition was not duly paid, the
original debt should revive; and that, by their failure to do so,
Virtue and Company bad violated the condition, and therefore
Horsefalls were entitled to revert to their original debt ; and,-
£. That as it was admitted that the second bill had been re-
ceived merely as an indulgence to Virtue and Company, and was
for the amount of the composition, the circumstance of its being
granted could not affect Horsefall's rights.
The Sheriff found * that the pursuers, by delivering up, to
( the defenders the bill for the third instalment, and accepting
1 the renewed bill, gave up any right which they Jiad to claim
' the full amount of their original debt, on account of the third
* instalment not being paid in terms of the composition, and that
* they are entitled, in the last sequestration of the defenders, to
* claim only the composition on the amount of the debt in the bill
' for £5/6. 8s. ;' and thereafter decerned for £8: 11 : 11, as the
amount of the composition.
Horsefalls having advocated, and restricted their claim to the
effect of drawing full payment of the third instalment of the com-
position, the Lord Ordinary ' altered the interlocutors complained
' of, found that the complainers are entitled to rank for the amount
' of the debt originally due to them by the defenders, to the effect of
4 drawing full payment of jP54 : 8 : 4, being the third instalment
' of the composition agreed to have been paid to them, with in-
* terest thereof, and decerned for payment accordingly, conform
' to the conclusions of the libel before the Sheriff, and found the
' defenders liable in expenses.'*
To this interlocutor the Court, after hearing the counsel for
Virtue and Company, and without calling on Horsefall's counsel
to make any answer, adhered.
Loan President.*— It seems to be contended that we have borrowed
from the law of England the doctrine as to the original debt reviving.
That is not the case: it is part of tfce law of mutual contract, by which,
if the condition of paying the composition be violated, the original
debt will revive. The rule under the bankrupt statute is different,
in consequence of the words employed.
Loan Baloray*— The rule is consistent with common sense, — the
composition being the quid pro quo.
A
38 CASSS DECIDED IN THE
Lord C»4i©i**— I think that the advocators uifetrt fcw» i?**te4 to
have it found thtf t^ey were, entity to have been ranked for
full debt, uqder deduction of wfeat payments, they had received.
Loi^d PRE^iDfNT^— I think so too, and that the interlocutor e^oes not
express what is the rule at common lav ; but as they have not re-
claimed, and are satisfied with the finding of the Lord Ordinary,
we cannot alter the judgment to that effect.
Advocator*' Authorities.— (L>- 2. Bell, £98, Alton, Nov. 23. 1706, <6X1<L)
Respondents' Authorities— (I.)— \. Montague, 222, and Ap. p, B7.— (2.)— 2. Erik.
No. 24. Mrs. MTarlane or Graham, Advocator. — goQkburyi^DoncM.
Dujc$ of Montrose, Respondent — Soli-Gen. Mope.
Process— Advocation— Stat. 6. Geo. IV. e. 120. §40.—^. S. 12M Nop. 1885, § 71.—
Held,— 1. — That fifteen days having elapsed from the date of an interlocutor in
the Inferior Court, allowing a proof before a bill of advocation was presented, the
bill was incompetent, although it was presented within fifteen days from the time
a commission was granted for taking the proof; — and,— 2. — That the limitation
in point of time prescribed by the Act of Sederunt, J 2th November 1825, as to
presenting such bill, is not ultra vires of the Court*
0
Nov. 24. 1826. The Duke of Afontrose raised an action of removing before
1st Division, the Sheriff of Stirlingshire against Mrs. MTarkne, widow of\
Bui-Chamber. Walter MTarlane, tenant of the island of Inchcruin in Lochlp-
LordMedwyn. mond, on the ground that the lease was expired: In defence she
alleged that Mr. Watt, the factor of his Grace, had granted a
prolongation of the lease, ancjl that he was fully authorized so to
do. This being denied, the Sheriff, on the 22d of May 1826, pro-
nounced this interlocutor : — ' Before answer, allows the defender,
( Mrs. Jane Elizabeth Graham, a proof of her averment that Mr.
' Watt had full power to grant leases, or to enter into agree-.
* ments to grant leases of the noble pursuer s farms ; and allows.
( the pursuer a conjunct probation thereanent; grants diligence,
.' at the instance of both parties against havers for recovering the,
* factory or commission by the noble pursuer, to Mr. Watt, and
c all other writings they may respectively consider necessary in
' support of their pleas, and commission to the clerk depute to
' take the depositions of the havers, and receive their exhibits,
' and assigns this day three weeks for reporting/ An examina-
tion of havers accordingly took place ; but no commission having
been granted for examining witnesses, the Sheriff, on an applica-
tion to that effect, granted one on the 12th of October. Against
these interlocutors a petition was presented, which was refused as
incompetent on the 90th of October; and the term for reporting
the proof was prorogated for fourteen days. Mrs. M'Farlane then
kv
COURT OF SESSION. 80
presented a bill of advocation on 24th October ; and founding
on the 40th section of 6th Geo. IV. c* ISO, she prayed that the
bill might be passed without discussion or caution, so that the
proof might be taken in the Jury Court. Answers having been
ordered, it was objected that as the interlocutor allowing a proof
had been pronounced cm the 26th of May, and as fifteen days had
expired long before the presenting of the bill, it ought to be dis-
missed as incompetent, in terms of the 71st section of the Act of
Sederunt of 12th November 1825. The Lord Ordinary accord-
ingly refused it as incompetent, ' in respect that the 40th section
' of the Judicature Act, on which the advocation is founded, re-
* quires the application to be made ' as soon as an order or inter-
" locutor allowing a proof has been pronounced in the Inferior
" Court,9 and that the 71st section- of the relative Act of Sede-
' runt implies that the bill of advocation must be presented in
' such time that the passing of it may be intimated in the Inferior
( Court within fifteen days after the interlocutor, and in respect
* that the bill was only presented on the 24th ult.,. grounded on
' an interlocutor dated 26th May last.'
Mrs. MTarlane then reclaimed, and contended,
1. That as it was impracticable to take the proof under the
interlocutor of 26th- May, seeing that no commission had been
granted, and as an effectual order for proof had only been pro*
nounced oa the 12th- of October, and the bill had been presented
within fifteen days from that date, it was perfectly competent ;
and,
5t That as there was- no limitation in the statute of any period*
widtin which such a bill might be presented, provided it was
done before the proof was- actually taken, it1 was not competent
for the Court of Session, by their Act of Sederunt, to limit the
privilege thereby bestowed*
The Court adbenod-
The Judges were unanimously of opinion that the fifteen days were to'
be reckoned from- tbe< interlocutor allowing the proof ; and that it was
competent for the Court, in rirtue of tbe<powers conferred on them
by the statute, to liinit.tbe period within which such a bill should be
presented*
W. MgacjgB, W. S»<—J. Dundas, \V. S«— AgenU.
40 CASES DECIDED IN THE
* •
No. 25. D. Napieb, Suspender.— MaMand — Shaw.
J. Lang, Charger. — Clephane.
Nov. 24. 1826. Lords Medwyn and Ceingletie successively refused bills of
2 ~ suspension presented by Napier of a charge on an interim decree
Bill-Chamber, for previous expenses awarded by the Sheriff of Lanarkshire in a
Lords Medwyn cause depending before him, (since brought here by advocation,)
and Cnngictie. oq m^unt of Napier'* delay to state explicitly the defence on
which he rested his cause. The Court adhered.
C. Fisher, — W. Guthrie, — Agents.
No. 26. Sir W. F. Eliott, Suspender.— D. of F. Moncreif—S. Bell.
Cocks and Company, Chargers. — Baird.
Game Debt— Bill of Exchange.— Bill of suspension passed Jto try question, whe-
ther the onerous holder of a bill of exchange is affectable by the circumstance
of its having been granted in consideration of a game debt.
Nov. 24. 1826. The Lord Ordinary refused a bill of suspension of a charge
2d Division. g*ven by an indorsee to the acceptor of a bill of exchange granted
Bill-Chamber, in consideration of a game debt; but the Court, being of opinion
Lord Robert- that the early Scotch cases on this point had proceeded on an
B ' erroneous notion as to the practice of the English Courts, and that
they could not be held to have settled the question, more especially
as, in the later case of White's Trustee v. Johnston's Trustees,
January 22. 1819,* (which was compromised before coming to a
second judgment,) this Division of the Court had unanimously
found that the objection of haying been granted for a game debt
applied to a bond in the hands of an onerous assignee, recalled
the interlocutor, and remitted to pass the bill.
W. Bell, W. S — Ferrie and Fairley, W. S. — Agents.
* The Reporters are enabled, by the kindness and courtesy of the Lord Justice-
Clerk, to give the following report of the case here alluded to from his Lordship's
note-book :—
4 A large sum of money was lost by the late Sir J. L. Johnstone at play to Mr.
4 Graham of Gartmore in October 1802, for which two bills of £ 1000 each, and a
4 post obit bond, payable at the death of Sir W. Pulteney, for .£8000, were granted
4 by Sir J. Johnstone. Afterwards it appears that the post obit bond was cancelled,
4 and a new bond granted for a small sum, making, with the bills, £3500; and that
4 Mr. Graham, on Sir J. Johnstone's succeeding to Lady Bath, had renewed his de-
< mand of payment, when the matter was referred to the Duke of Argyll, the Mar-
4 quis of Headfort, Lords Moira and Newark, as arbitrators. An award was prc-
4 nounced by them in May 1810, which led to Sir J. Johnstone's granting to Mr.
4 Graham three bonds for .£2000 each. Two of these bonds having been trans-
COURT OF SESSION. 41
W. Ramsay, Suspender. — Donald. N<h 27«
Dr. Aitun, Charger.— G. G. BdL
Prtmmu Expense*.— A party having obtained a bill of suspension to be passed,
and having expede letters thereon, but having allowed judgment finding the letters
orderly proceeded to go out by default, must, on presenting a new bill, pay the
previously incurred.
Ramsay having obtained a bill of suspension of a charge at the Nov. 84. 1896.
instance of Dr. Aitken to be passed by the Court without cau- «j> Division,
tion or consignation, expede his letters; but, having made no ap- Bill-Chamber.
pearance at calling the cause, the letters were found orderly pro- I*0** M*cken-
ceeded, and expenses awarded. For these expenses, and the sum p *
contained in the original charge, Dr. Aitken again charged him,
and he presented a new bill of suspension, which having been re-
fused by Lord Cringletie, he presented a second. This was also
refused by Lord Mackenzie; but, on a reclaiming note, the Court
remitted to pass the bill on caution, and on payment of the ex-
penses previously incurred, or (of consent of the charger) on
caution for these being found.
R. Cairns, Agent.
' fared to Mr. White, formerly a shopkeeper in Edinburgh, for value said to have
* been advanced, but considerably under the amount of the bonds, a claim was
4 made for payment on the trustees of Sir J. Johnstone. It appears also that in
4 the lifetime of Sir John, on a demand of payment being made by Mr. Graham
4 as to one of the bonds, Mr. Ure, one of the trustees, wrote that he had authority
4 from Sir J. Johnstone, and would admit it as a debt under the trust, if it was not
4 publicly exposed to sale. But Sir J. Johnstone having died, his trustees raised
4 the present action for reducing and declaring void the bond, and also the letter
4 of Mr. Ure, as being in violation of the act of Queen Anne.
4 The Lord Ordinary pronounced an interlocutor, sustaining the reasons of re-
4 Auction, against which the petitioner, as trustee for the creditors of White, has com-
4 plained; and he contends that the statute does not reach the bonds in question,
4 which were granted in consequence of the award, after the game debt had been
4 done away—that, at any rate, it could not attach to him, who acquired hand fide
4 — -and that Mr. Ure's letter bars the trustees from any such objection,
4 Oranoir.— I thought it right that answers should be ordered, that we might see
4 the respondent's account of these transactions ; but I am now satisfied that the in-'
4 terlocntor is right.
4 The words of the act are few and precise, and reach all documents or obliga-
4 turns for game debts, into whatever hands they pass, even bond/He holders. See
4 this incidentally laid down by Lord Mansfield, 2. Douglas, page 636. His words
4 are, in speaking of notes and bills,—4 The law is settled, that a holder coming
14 fairly by a bill or note has nothing to do with the transaction between the ori-
44 ginal parties, unless perhaps in the single case (which is a hard one, but has
4 been determined) of a bond for money won at play ;' and here, notwithstanding the
* proceedings that are detailed as covering up the transaction, we must hold that
4 the bonds in question had reference to money lost at play. And I am not at all
42 CASES DECIDED IN THE
No. 88. J- M'Cbonx, SvtqtioAtr.-^eJrci/^-CAristuon.
D. Campbell, Respondent.— Cuninghame.
Chunk Seat—htierdicti — Circumstances in which a bill of suspension and inter-
dict against occupying a seat in church passed.
Nov. 24. 1826. M'Crone, the proprietor of a feu on the estate of Hohnhead
2© Division. m ^ pari8*1 of Cathcart, * together with a proportion of any area-
BiH-Chamber. ( in the church of Cathcart effeiring to the lands hereby disponed*'
Lord Pitmiiiy. qbout 18 years ago erected and enclosed a pew in the church,
** and had, by himself or tenants, been in use to occupy it. Campbell,
who, it was alleged, was tenant of & mill and some lands, also
held feu -of the same estate of Holmkead, and had at one time
commenced sitting in this seat while a tenant in JTCroae's
feu* having continued to occupy it jointly with M'Crone* the
latter, in the course of last autumn, wrote to Campbell that he
intended to put a lock on the seat, with a view to exclude him,
in order that Campbell might, if he saw caupe, take legal steps to
prevent this being done. Campbell did not resort to such mea*
sures ; but as soon as M'Crone had put the lock on the seat, he
broke it open, and took forcible possession. Thereupon M'Crone
presented a bill of suspension and interdict to have Campbell
prohibited from taking possession of and using the seat. The
Lord Ordinary passed the bill,, and likewise granted the interdict;,
and the Court adhered*
Loan GLBNLBB~-T-The kjtedocutor is, right. After the letter giving
notice of the intention to put on a look, that he might take legal
measures, Campbell' had no right violently to intrude, and he ought
to be interdicted. I do no£ say, that if any one puts up an obstruc-
4 clear that, the acquisition, at so great an undervalue is not sufficient to show that
4 the petitioner White knew their origin. I do not think he can plume himself on.
4 bona Juki. I was at first moved by the terms of Mr, Ure's letter ; but as any. such.
4 promise, even by the granter,,would have been no bar to an after challenge on
4 the statute, I cannot consider it as precluding the pursuers, from, reducing the
* bonds.
4 Lord Glenlee.— The interlocutor is quite right.
4 Lord RoberUonr-—l wished for an answer, to have it ascertained if the, evidence
4 was sufficient. I am now satisfied this was a game debt ; and there is a vithtm
4 reqle quod inker** o$sibus, and it is declared void by the statute. Whether there
4 is bona fide*, or. nots I do not give much credit to it here ; but, at any. rata, that-
4 will npt avail. As to Ure's letter, it would not avail amy thing, more than . Sir J .
4 Johnstone's,
4 Lord BatumtyHe concurs in opinions delivered.
4 Lord Craigie equally clear for adhering.
4 Unanimously adhere, withjexpenses.'
COURT QF SESSION. *)
tion wktair notice, parties dbtuibed by it may not knock H down
brevi manu; but that it not the cm* here, and besides, the possession
seems to have been in favour of M'Crone.
Lords Justice-Clerk and Pitmilly concurred.
Lord Allowat.— I likewise concur in the interlocutor; but I
wodki go chiefly on the seat having been erected by IVFCrone.
W. Revny, W.8*-J. Baird, W. S*— Agents.
David Paterbon, Suspender. — Carrie. No. 29*
A. Mitchell, Charger. — SoL-Gen. Hope.
Fmrgerg<—& bill of suspension passed simpliciter of a charge on a bill which the
Court was satisfied from inspection was forged.
Patjerson presented a bill of suspension of a charge as indor- Nov. 25. 1896.
ser on a bill, alleging that his name was forged. The Lord Or- . ~
dinary refused it, € in respect that this bill is founded on an alle- Bill-Chamber*
'gation of forgery, which is quite general, and unaccompanied Lord Med wyn.
1 by any statement which can give it plausibility, and that it is S.
1 offered without caution, and that the suspender does not produce
* any subscriptions by himself, stated to be genuine, which would
* admit of a remit to engravers.9 Paterson having reclaimed, and
produced genuine signatures, the Court, on comparing them with
the indorsation, and being satisfied that it was a forgery, passed
the bill without caution or consignation.
A. Goldix, W. SU-IL Bvahbzt, W. S*— Agents.
J. Dickson, Suspender. — Maidment No. 30.
A. Dickson, Charger. — Jameson.
Deerte in Foro Owwpgnjatfyon.-— Circumstances under which, a plea of compensa-
tion against a charge on a decree in foro for expenses was repelled.
James Dickson presented a bti& of suspension. of a charge on Nov. 35. 1826.
a decree of the Court of Session for £Wt of expenses, which had j D
been obtained in foro. in support of it he alleged that, in the Bill-Chamber.
process in which the decree had been obtained, he had unsuccess- Lords Craigie
folly attempted to show that certain advances to the charger had M&dwyn.
been made by him as a partner ; but that, as the Court had found
that there was no partnership, he was entitled to repayment of
these advances, and to set them off against the claim for expenses.
The Lord Ordinary refused the bill, ' in respect that this bill of
' suspension of a decree in foro is offered without caution, and
* that the reason of suspension as to the sum charged for having
44 CASES DECIDED IN THE
* already been paid, is founded on an alleged claim of a sum pre-
' viously paid on another ground altogether, and which payment
* the suspender says he ought not to have made.9 To this inter-
locutor the Court adhered, both for the reasons there stated, and
that the counter claim appeared to be unfounded.
J. J. Fraskr, W. S— A. Greig, W. S.— Agents.
No. 31* E. Anderson, Suspender. — Alison.
H. M. Low, Charger.— JamiJoro.
Bitt-Chamber — Z?*p«ue*.-— Circumstances under which a first bill of suspension
having been refused, and expenses found due, and a second bill being passed,
the Court refused to recall the finding of expenses relative to the first bill.
Nov. 28. 1826. Anderson having been incarcerated, as in meditatione fugs,
1st Division. m January 1826, presented in August thereafter a bill of suspen-
Bill-Chamber. sion and liberation, which was refused by Lord Alio way, and
LorH8pidOWay exPenses were found due on the 25th of that month. He then pre-
sented a second bill, which was passed by Lord Eldin on the 20th
of September. On the. 15th of November he reclaimed to the
Court against the interlocutor of Lord AUoway finding expenses
due, and praying to have the bill passed, to the effect that all
questions of expenses might be discussed on the expede letters.
To this it was answered,
1. That the interlocutor of Lord AUoway was final, no re-
claimer having been presented within the requisite period ; and,
2. That the grounds stated in the second bill of suspension
were different from those pleaded in the first, and therefore that
the suspender was properly found liable in expenses.
The Court refused the reclaiming note..
Observed, that' it did not necessarily follow, that because a second bill
• had been passed, expenses were not justly due in relation to a pre-
vious one which had been refused.
G. Lyon, W. S. — Low and Rutherford, W. S. — Agents.
COURT OP SESSION. 45
John Stark, AdTocator.— Jeffrey — Cuninghame. No. 32.
Sir A. Edmonstone, Respondent— D. ofF. Moncreiff—ConneU.
Lmndbrdand Tenant,* Circumstances under which it was held that a tenant, hav-
ing followed the course of cultivation pointed out in his lease, was not liable in
damages for an alleged deterioration of the lands, arising from the rules of good
husbandry not having been observed.
In 1805 Stark obtained a lease for 19 years of a farm belong- Nov. 28. 1816.
ing to Sir Archibald Edmonstone, at a rent of £96. By the tack \„ Division.
the following stipulation was made in relation to the cultivation Lord Eldin.
of the farm : — ' And further, the said John Stark binds and
obliges himself to labour, manure, and manage the lands hereby
let in such a manner as the same may not be hurt by undue
labour, and in no wise to waste or deteriorate the lands, but, on
the contrary, to use all proper means for meliorating and im-
proving them ; and particularly the said John Stark binds and
obliges himself and his foresaids to manage, cultivate, and
labour the lands hereby set, according to the rules of good hus-
bandry for that part of the country and such a farm ; that is to
say, one third part of the arable lands to be at all times in grass,
and one twelfth part at least in fallow, potatoes, or turnip. Three
white crops are never to follow one another without the inter-
vention of fallow, turnip, tares, cabbages, potatoes, clover, or
black crop — that is, peas or beans, or both. Wheat is never to
be sown oftener than once in lour years on the same spot If a
white crop follows a black crop, the land to be in fallow or tur-
nip the subsequent year, and grass seeds must be sown with
the white crop which immediately follows fallow or turnips.
And the said John Stark binds and obliges himself and his
foresaids to consume all the straw of the farm upon the farm ;
as also to lay upon the farm yearly all the dung which may be
produced from it during the continuance hereof, and tq leave
his last year's dung thereon, for the use of Sir Archibald Ed-
monstone, Bart-, or his incoming tenant, upon being paid the
value of the same, according to the determination of two neutral
men to be mutually chosen. The said Sir Archibald Edmonstone
and his foresaids, or the incoming etnant, shall have liberty to
sow grass seeds with any part of the waygoing crop they shall
think proper, to the extent of five acres lying contiguous; the
said John Stark and his foresaids being bound to harrow in the
same along with their own seed, without receiving any allowance
on that account, and also to hain the said sown grass from the
separation of the crop.* Founding on the above stipulation, Sir
46
CASES DECIDED IN THE
Archibald Edmonstone, early in 1824, presented a petition to the
Sheriff of Stirlingshire, stating * that the said John Stark has
already hurt the said lands by undue labour, and is not manur-
ing or managing the same according to the rules of good hus-
bandry of that part of the country ; on the contrary, is wasting
and deteriorating the same. Particularly he had begun to plough
the park at the top of the wood on the same farm, which, ac-
cording to his tack, and the rules of good husbandry, ought
not to be. broken up this year ; and in general ift not using a
park in the whole farm agreeably to the said futes ; And he is
leaving tops of hillocks un ploughed, and using improper means
to scourge and impoverish the farm.'' He therefore prayed for
a remit to c persons of skill to visit and inspect the whole of the
said farm, this being the last year of his possession, and to re-
port their opinion as to the present state and condition thereof,
and what parts of it ought to be sown and laboured this fteason,
agreeably to the rules of the tack, and those of good husbandry
in that part of the country in such a farm.' The Sheriff re-
mitted to farmers * to visit and inspect the farm in question, and
to report in terms of the prayer of the complaint, and, in par-
ticular, whether the park at the top of the wood ought to be
plotighed or laboured this season ; and if the lands are deterior-
ated, to what extent.1 These persons repotted, that in general
Stark had his farm laid down during 1822, 1828, and 1824, in thk
terms prescribed by the tack ;— that, however, they werfe ' of opi-
nion that the park at the top of the wood ought tiot to bfe
ploughed this season, and that oil that aetontri he ought to bb
found liable in £10 of damages ;' — that ' the farm in general
has been deteriorated bj the mismanagement of the tenant, —
(but in what particular respect they did dot specify) ;,— thit on this
account £96 ought to be awarded ;— that Sir Archibald Edmon-
stone should be allowed to sow grass setdtf amongst the cotif
crop ; and that certain other things would be advantageous: to
the- farm.
The Sheriff having* in respect of the report, found Stftf It
liable in £9B of damages, he brought an advocation, in whieht
he contended, That although there was a stipulation in the tack
that the farm should be cultivated according to the roles of
good husbandry, yet certain specific rules had been prescribed,
explanatory of these general terms; and a* the reporters did not
stite that he had deviated from these rules, *nd a* Sir Archibald
Edmonstone had at all tines an opportunity^ either by biiftMtfor
hit-factor, of checking any improper deriatiott from then* daring
the cnmricy of the lease, and as no complaint of mismanagement
^r
: COURT OP SESSION. 47
bad been made till the expiration of the lease, when it was brought
forward only in vague and general terms, he ought not to be sub-
jected in damage*.
To this it was answered, That the stipulation which required
that the rules of good husbandry should be followed, and that
the lands should not be wasted or deteriorated, was independent
of the specific provision as to the course of cultivation ; that the
fact, whether the lands had been deteriorated or not, was to be
ascertained by neutral men ; and that as it had been found that
they had been deteriorated, and that one park ought not to have
been ploughed, the judgment of the Sheriff was correct.
The Lord Ordinary' advocated the cause, altered the interlocu-
tors, assoilzied Stark, and found him entitled to expenses ; and
the Court adhered.
The Judges appeared to be satisfied that Stark had, in the cultivation
of his farm, followed the course which bad been prescribed to him ;
and that having done so, he could not be liable in damages for any
deterioration thence arising.
RetpemUnt* Avtiymtit:— Murray's Trustee*, Fab. 96. 1806, (No. 19. App.
Tack); Thomson's Reprs. Not. 12» 1824, (ante, Vol. III. No. 209.)
J. DictiE, W. S— J. and W. Ferrier, W. S— Agents,
Mrs. M'Nkull or Jollik, and A. Clason, W. S. Pursuers*— No. S3*
D. ffF. Moncreiff—Rutherfutd.
W. Moib, Defender.— Wikon.
Cavtio*eT-~Muf.--C\rc\}mBUaice* under which ft was held that a principal debtor
was bound to relieve his cautioner, without abiding the discussion of certain
alleged counter claims.
Thb pursuers brought an action of relief against the defender, Not. 28. 1826.
concluding that he should be ordained to relieve Mrs. Jollie of a ln Dm8I0W#
cautionary obligation contracted on his behalf by her father, and Lord Eldin.
in security of which a bond had been granted over her estate. s-
In defence, he alleged that he had considerable counter claims ;
and the Lord Ordinary appointed him to lodge a state of his ac-
counts. Having failed to do so, after repeated orders for pro*
duction of them, the Lord Ordinary decerned in terms of the
libel, and the Court adhered.
J. Smyth, W. S.-?-P. Graham, W. & — Agents.
j 48 Cases decided in the
No. 34. T. Cargill, Pursuer. — D. Dickson.
J. Baxter, Defender. — D. qfF. Moncretff—J. Henderson jun.
Process— Summons.— A party having raised, and for a considerable period in-
sisted in an action of count and reckoning and damages ; held competent for him
to raise a supplementary summons on exactly the1 same narrative of facts, but
concluding for damages for certain acts,' which, though narrated in the former
summons, did not form the ground of the conclusion for damages.
Nov. 28. 1826. Ik 1813, Cargill, who had been tenant of a farm of Baxter's,
2d Division, raised a summons against the latter, narrating a series of alleged
Lord Glenlee. oppressive and injurious proceedings on the part of the land-
F* lord, and, inter alia, certain proceedings in regard to the man-
agement and sale of his stock and cropping under a process of
sequestration, and concluding for count and reckoning, and for
damages on the ground of an alleged illegal interdict and ejec-
tion ; but not concluding for any damages in respect of the land-
lord's conduct regarding the sale and management of the crop.
The action, however, went on, as if there had been such a conclu-
sion, till 1820, when the defect was pointed out by the defender.
A supplementary summons was then raised, which, narrating the
same facts as those in the original summons, concluded for da-
mages on the ground above mentioned. The Lord Ordinary,
having disposed of most of the conclusions of the original sum-
mons, reported the supplementary action on informations, with
the condescendences and answers as to the grounds of damage*
The Court found that the supplementary summons was com-
petent, and remitted the cause to the Jury Court.
R. Urquhart, — C. F. Davidson, W. S. — Agents.
No. S5. W. Jeffrey, (Anderson's Trustee,) Pursuer.— 2?ro<&.
J. and J. M'Gregor, Defenders. — Clephane.
Process, Foreign*— Varty reponed against decree of Lord Ordinary, proceeding on
• failure to obtemper an order for the production of the original proceedings in a
. foreign Court, in respect these proceedings were now produced ; and Observed,
that no Court was entitled to demand production of the records of a foreign Court.
Nov. 28. 1826. In an action founded on a decree of the Court of Hamburgh, the
2d Division, k^timate or extract of which was produced at the commencement
Ld. Cringletie. of the action, the Lord Ordinary appointed Jeffrey, the pursuer, to
B. produce the original proceedings before that Court, and, after the
lapse of a prorogated period, ' in respect the decreet founded on
' has not been produced,' dismissed the action. Against this in-
COURT OP SESSION.
40
terlocutor Jeffrey reclaimed, and before the cause came to be.
heard, he obtained and produced the original proceedings in the
Court of Hamburgh* The Court thereupon remitted to the Lord
Ordinary to recall his interlocutor, receive the productions, and
proceed accordingly, reserving to him to decide all claims of ex-
Loan Alloway observed, that the order by the Lord Ordinary to
produce the original proceedings ought not to hava been made, as no
foreign Court had a right to demand that another should part with
its record.
W. and A. G. Ellis, W. &— Campbell and Mack, W. S— Agents.
L.O.
W. Anderson, Pursuer.— Jar dine.
W. Somme&s, Defender. — Murray — Currie.
with expenses. Court adhered.
Lyon and Child, W. S-— J. L. Mitchell, — Agents.
Mrs. Graham, Pursuer. — Cuninghame.
K. M'Aethub, Defender, and A. Johnston, W. S. his Agent.
—Brownlee,
Agent and Client — Writer'* Hypothec.— -Agent in a cause for a party in whose fa-
vour expense* have been awarded, not entitled to object to deduction of a sum of
expenses in which his client had been found liable at a previous stage of the pro-
No. 36.
l^ov. 28. 182G.
2d Division.
Ld. Mackenzie.
B.
No. 37.
zie.
M'K.
In an action at the instance of Mrs. Graham against M'Arthur, Nov. 28. 1826.
a sum of expenses was, in 1819, awarded to the former, for which o,D Division
decree was allowed to go out in name" of Mr. Dickson, her agent. Lord Macken-
The decree, however, was never extracted, and at a subsequent
period, Mrs. Graham haying been found liable in certain ex.
penses, Dickson renounced his claim to those formerly awarded
her, and for which decree had been allowed to be taken in his
name, and she thereupon claimed to be allowed to set off against
(he expenses in which she was now found liable, those formerly
awarded her. This was opposed by Mr. Johnston, M1 Arthur's
agent, who contended that he was entitled to decree in his own
name for the expenses found due to his client, and that Mrs.
Graham could not defeat his right by setting off those awarded
to her many years before, which had thus come into the situ*
ition of any other private debt between her and M" Arthur ; and
that the cases of Stothart v. Johnston's Trustees in the Jury Court*
vol. v. D
50 CASES DECIDED IN THE
and of Warburton v. Hamilton, did not Apply to the present, a*
in both these the expenses allowed to compensate each other were
awarded unico contextu, and arose out of the same verdict of
judgment. The Lord Ordinary admitted the renunciation by Mr.
Dickson, and found ' that the expenses to which Mrs* Margaret
' Graham was formerly found entitled in this process, must be
' deducted from the expenses to which she has now been found
* liable, before decreet can be allowed to go out in name of Mr.
4 Johnston, the agent for Robert AT Arthur, for the latter ex-
' penses.' The Court unanimously adhered.
Justice-Clebk.— I cannot take any distinction between thfar
case and the two founded on by Mrs. Graham ; though, if the decree
in Mr. Dickson's name had been extracted, it might have been differ-
ent.
Lord Glenlee. — I hare no idea that the agent in a cause is in any
better situation than the principal party, barring extrinsic claims of
compensation.
Lords Pitmilly and Allowat concurred,
Mr. Johnston'* Authorities — Stothart ». Johnston's Trustees, Dec. 3. 1822,
(2. Murray's Rep. 549) ; Warburton, May 30. 1826, (ante, Vol. IV. No. 393.)
W. Dickson, W. S. — A. Johnston, W. S. — Agents;
No. 38, J- Murray and Others, Pursuers. — Jameson — J. Murray Jun.
J. T. Thomson, Defender. — Sol-Gen. Hope — Small Keir.
Nov. 29. 1826. This was a special case, in which the Lord Ordinary decerned
1st Division. aSa*n8t the defender for expenses from a certain date; and the
Lord Eldin. Court adhered.
8.
Cuningham and Bell, W. S— J. Youno, W. S. — Agents.
No. 3Q* Bazett, Faequhar, Crawford, and Company, Pursuers. —
Skene — H. J. Robertson.
Heugh's Trustees, Defenders.— Sol.-Gen. Hope— J. Millar.
Executor— Decree of Constitution*— -Held that a legatee is entitled to decree con-
y stituting his legacy against the executors or trustees of the testator, although i£
be provided by the will that, in the event of an insufficiency of funds; the lega-
cies shall suffer a pro rata diminution, and it has not been ascertained whether
there will be sufficient funds.
Nov. 29. 1826. The late John Heugh, by a trust-deed of settlemen t,bequeathed
1st Division. * kgacy °f £1100 to each of his sons and daughters, one of whom
Lord Meadow- was Andrew Heugh, "who resided at Calcutta ; « payable the said
bank. * legacies at the first term of Whitsunday or Martinmas hap*
COURT OF SESSION. 51
i
pening 12 months after my decease, with interest thereon there-
after : It being hereby declared, that if I shall have previously
advanced any sums to or on account of my said children, or
either of them, and shall not have debited them therewith in any
book or ledger, that then and in that event such sums shall not
be understood to form a part of their provisions under this set*
dement ; but where I shall have debited them with such advances
in my said book or ledger, the amount of the same, and interest
thereon from the time of such advance, shall be held and under*
stood as payment of a part of their said legacies, and be deducted
by my said trustees from the amount thereof at settling the
same : And also declaring, that in the event of the death of any
of my said children without lawful issue of their bodies, that
then and in that event the legacy above destined to such de-
ceasers shall fall to and be equally divided among my sur-
viving children, including the said John Heugh, and the heirs
of the body of predeceasers, such heirs being only entitled to
the share which would have fallen to their parents, if alive : And
also declaring, that in the event (from any unforeseen cause)
of my said estate and effects before conveyed falling short of
being sufficient for the payment of the said legacies to my said
children, and satisfying the other purposes foresaid of this trust,
that then and in that case such deficiency shall be borne equally
by my said younger children out of the legacies, before destined
to them.*
Andrew Heugh having died, leaving a will nominating execu-
tors, the pursuers, as their attomies, brought an action against the
trustees, concluding for decree of constitution against* them. In
defence, the trustees did not deny that there were sufficient funds
to pay the legacies ; but pleaded that as they had not been able to
realize them, and as it might eventually turn out that they would
not be sufficient to pay all the legacies, and as it was provided
by the trust-deed that in that event each of the legacies should
suffer a pro rata diminution, decree ought not to be pronounced
in the mean while. The Lord Ordinary * ordained the defend-
' ers, the trustees of John Heugh the testator, to give in a state
* of their accounts, accompanied with the vouchers ; but in respect
1 the trust-deed contains a clause, providing that in case of de-
' falcation of funds to pay all the legacies in full, each shall suffer
' a pro rata diminution, refused, in hoc statu, to pronounce decree
* of constitution for the legacy now sued for against the said de-
' fenders, and recommended to the parties to bring all the lega-
* tees, and others interested in the trust-funds, into the field by a
' process of multiplepoinding, to be remitted to and conjoined
d2
i
52 CASES DECIDED IN THE
' with the present process, reserving all questions of expenses.
The pursuers then reclaimed, and contended that they were en-
titled to immediate decree of constitution; that the provision in
the trust-deed was merely a declaration of the rule of the com-
mon law, that if there should not be sufficient funds to pay the
whole legacies, each of them should suffer a corresponding abate-
ment ; and that & decree of constitution would not prevent the de-
fenders from pleading that defalcation, if it should happen to ex-
ist. The Court altered, pronounced decree of constitution, and
found expenses due, under deduction of those necessary for ob-
taining such a decree.
Lord President. — All that the pursuers demand, is a decree con*
Btituting their debt against the trust, which they are entitled to* If
there be no trust-funds, the decree will be of little avail ; and if there
be a defalcation, there must be a diminution corresponding with that
to be suffered by the other legatees.
Lord Gillies. — A decree against these trustees is nothing else than
a decree in terms of the will, and of course subjecting the legacy to
a diminution, if there should be a defalcation.
The other Judges concurred.
Pmrnten* Authorise*.— Preston, July 8. 1634,(3881); 3. Stair, 8. 39; 3. Ersk. 9. IS*
A. Pearson, W. S. — J. Burn, W. S. — Agents-
No. 40* A. Millar, Complainer.— D. cf F. Moncreiffl
J. Gibson-Craig and Others, Respondents.— SoL-Gm. Hope.
Royal Burgfr— Process.— A petition and complaint against an election of Magis-
trates, in name of a member of the Town Council of the burgb, having been pre-
sented by one counsel, the Court refused to allow if to be withdrawn by another
counsel holding a written mandate to that effect from the complainer, before or-
dering service ; but appointed it to be served, reserving all objections.
Nov. 29. 1826. A petition and complaint, in name of Andrew Millar, against
2d Division ^e e^ec^on °f certain members of the Town Council of Culross
B. at Michaelmas last, was presented at the Bar by Mr. Solicitor-
General, in order to be written on, so as to keep it within the two
months allowed by. act of Parliament, 16th Geo. II. c. 11. It
was accordingly superseded till this day, when. a motion for an
order for service, &c. having been made by Mr. Solicitor-General,
Mr. Dean of Faculty appeared at the Bar with a written man-
date from Millar, dated the 38th of November, disclaiming the
petition, and recalling any authority which he might be supposed
to have given for presenting it ; and Mr. Dean accordingly, on
the part of Millar, craved to withdraw it. This was opposed by
COURT OF SESSION. 53
Mr. Solicitor-General, (who did not, however, produce any written
mandate from Millar,) on the ground that the petition being once
duly before the Court, they could do nothing but order service,
and remit to the Lord Ordinary in terms of the late act of Par-
liament. On the other hand, it was contended by Mr. Dean of
Faculty, that a party might withdraw a petition and complaint
at any stage, and that the Court could* not proprio motu order
service, without a motion by the party who here disclaimed the
process. The Court appointed the petition to be served, and re-
mitted to the Lord Ordinary, reserving all objections founded on
the disclamation, as to which a minute was allowed to be given in
by Mr. Dean of Faculty.*
Lobds Justic£-Clxbk, Glenlek, and Pttmillt were of opinion
that the Court could follow no other coarse than order service, Arc.
in terms of the late Judicature Act $ and that, in consequence of the
reservation of the objection, no injury could arise to any party
from this procedure.
Lord Allow at, on the other hand, held that the Court were not
entitled to prevent a party from withdrawing his complaint, or to
order service, when the party himself opposed it ; and that if there
was any donbt as to which course Milkr really meant to adopjt, or
which counsel he had truly authorized, it ought to be inquired into
before 'service, the more especially as the presenting the petition
was sufficient to avoid the statutory limitation, and thus preserve
the rights of all parties having interest.
J* Ross, W. S. Agent.
M. Alexander and Others, Pursuers.— -J. Millar. No. 41.
J. and W. Inglis, Defenders. — Bruce.
This was an action concluding for reduction of a confirmation Nov. 29. 1826.
of executors to a party deceased, and depended on a proof as to 2d DlvIM01f
propinquity. The Lord Ordinary, satisfied that the pursuers Lord Med wyn.
had failed to establish any relationship to the deceased, assoilzied M'K.
the defenders, and the Court adhered.
<
H. Watson, W. 8 W. Smith,— Agents,
* A note, praying to withdraw the complaint, was, a few days afterwards, given
la for Millar, accompanied by a mandate dated 30th November ; but, when moved,
a counter mandate of the same date was produced on the other side of the Bar,
authorizing the prosecution of the complaint The Court refused the note.
54 CASES DECIDED IN THE
No. 42. A. Campbell, and his Curators and Inteedictoes, Pursuers
and Suspenders. — M^Farlan.
R. Hill, Charger and Defender. — Cuninghame.
Judicial Examination— Bill of Exchange.— Court refused to allow the holder of a
bill to be judicially examined as to his not being a bona fide onerous indorsee, and
as to his knowledge of the manner in which it had been obtained from the acceptor,
a minor of facile disposition, on the ground that there was not sufficient cause
of suspicion against him, and that a proof had been taken, on which a judgment of
the Inner House had been pronounced in his favour, before the examination was
craved.
Nov. 29. 1826. This was a case somewhat similar to that mentioned ante,
2d d™n ^°^ *• ^°" ^**» between the pursuer and Turner. The pur-
Lord Reston. suer, who was of an extremely facile disposition, had in his
M'K. minority been induced, chiefly by one Carlaw, by means of fraud
and circumvention, to grant a number of bills of exchange
without value ; and two of these having been indorsed by Carlaw
to the defender Hill, a horse-dealer, who gave a charge thereon,
Campbell, with concurrence of his curators and interdictory
brought the present process of suspension and reduction, on the
grounds of facility, minority, lesion, and circumvention. In de-
fence it was pleaded, that Campbell had been in use to grant
bills in the course of the management of his farm, and that Hill
was a bona fide onerous indorsee. A proof was led ; on ad-
vising which, the Lord Ordinary, * in respect that the pursuer
* Andrew Campbell, though only 19 years of age, and to a con-
' siderable degree facile and improvident at the date of the biHs
' in question, managed hi* farm, and was in the habit of granting
4 bills in the course of his management, found that the bills grant-
* ed by him were effectual in the hands of a bona fide onerous in-
' dorsee, and that the defender's claim to that character has not
* been legally disproved/ His Lordship therefore assoilzied the
defender, and found the letters orderly proceeded.
The Court having adhered to this interlocutor, (Jan. 12. 1819,)
Campbell presented a reclaiming petition, praying to have HiU
ordained to appear and undergo a judicial examination — a course
which was afterwards allowed in the other case with Turner.
This petition was allowed to lie over for several years ; but an-
swers having at last been lodged, objecting to the competency of
allowing a judicial examination after a proof had been led and
judgment pronounced, it was now put to the roll, when thfe
prayer for a judicial examination was refused, and the interlocu-
tor adhered to.
COUBT OF SESSJON.
55
Lord Justice-Clerk*— There were some very peculiar and suspi-
cious circumstances in the case with Turner, which induced the Court
. to allow the judicial examination ; they do not occur here, and I do
not think that the present demand should be listened to.
Lord Alloway. — The judicial examination of the onerous holder of a
biB should not be allowed, except in circumstances of the strongest
suspicion.' I do not go so far as to say that it should never take
place; but I think it ought to be refused here.
Lord Pitmilly.— It is not necessary to consider the general compe-
tency of allowing judicial examinations in cases of this 'kind. Even
at the beginning of a case, I would not allow it on a vague allegation
of fraud ; but in certain cases it may properly be permitted at the
commencement of a cause, as it may prevent the necessity of proof,
or afford aid in the investigation ; and it is for these purposes that
judicial examinations have formerly been allowed, as is very distinctly
laid down in the case of Goodfellow, July 27. 1785, (1483.) After
a proof has been led, however, and the party is brought into the situa-
tion that he can only have recourse to the holder's oath, it is utterly
unjust to allow a previous judicial examination; and it ought to be
an invariable rale, that in such circumstances a judicial examination
should not be allowed.
Lord Glenlrx*— I always understood that it was contrary to settled
law to examine a man judicially on facta only provable by his writ or
oath ; but if it is to take place at all as to the onerosity of a bill, it
cannot, in the ordinary ease, be in initio li^is. It may turn out in the
course of the proof that strong suspicions are thrown on the bolder,
and then I do not see the objection to a judicial examination ? and
that was the state of the case in the question with Turner, where it
was allowed on account of suspicious circumstances coming out in the;
course of the process, as his saying he had no books, and afterwards
producing them ; but there is no vestige in the proof before us here
to lead to such suspicion as would justify a judicial examination.
iV«en' j4Maeri*f.—C*mpbe\lv. Turner, Jan. 24. 1832, (ante, Vol. I* No. 308.)
Q^feeV'j ylulAority.-Ulatoih* May 97. 1883, (ante, Vol. II. No. 333.)
Ton and Wright, W. 8.— J. Donaldson,—- Agents.
56 CASES DECIDED IN THE
< - •
No. 43. J. Mitchell, Advocator. — Jeffrey — Robertson*
R. Brown and Others, Respondents. — D. qfF. Moncreiff—
Rutherford. s
Servitude— Road.— Held, that a road on which there were two flights of stairs, waa
not a horse and carriage road, but only a footpath.
Nov. 30. 1826. This was a question as to whether a road which had been ori-
1st Division/ ginally ot^y s*x ^eet broad, but had been lately extended to nine,
Lord Eldin. situated in the village of Water of Leith, was a footpath, or was
to be held as a horse and cart road. An action having been
brought by Brown and others, before the Sheriff of Edinburgh,
against Mitchell, praying for interdict against his using it as a
horse and cart road, he stated that he had bought a house and
piece of ground in 1821 from the trustee on John Hutton's
estate, (the former proprietor of the subjects through which the
road was formed) ; that in the disposition it was described as a
common passage way, and that he had thenceforth made use of it
as a horse and cart road, so as to have access to his stables. . On
the other hand, Brown and others stated, that for a great many
years it had been exclusively made use of as a footway ; that it
was extremely steep ; that in the course of it there were two
flights of steps, and that it was impossible to lead horses along
it without danger to themselves and to the neighbours. The
Sheriff found * that the lane in question is common property to
« the pursuers, the defender, and other proprietors in said lane ;
( that it is admitted by the defender that the said lane was only a
' foot road, and was not used as a road for horses and carts until
' the defender, in 1821, purchased the premises now belonging
' to him ; and therefore, in respect the pursuers are entitled to
' a possessory judgment, found the defender not entitled to use
' the said lane as a horse road, until he either obtain the consent
* of the other proprietors, or until he have his right so to use the
* said lane declared in an action of declarator ;' interdicted him
from using it as a horse road, and found him liable in expenses.
Mitchell having brought an advocation, the Lord Ordinary
advocated the cause, and dismissed the action, * in respect that
* the road in question was at first only six and a half feet wide,
c and was lately enlarged by the advocator and others by the ad-
* dition of two feet and a half, and is their joint property ; that
' the proprietors of the road are subject to no restriction in the
' use thereof, and that the advocator has been in the practice of
4 using the said road with horses ; and it is presumable that the
* road was widened for the purpose of introducing horses, and,
COURT OF SESSION. 57
i
'if necessary, carriages.* But the Court unanimously altered,*
and remitted shnpliciter.
Lord Balghay*— It is impossible* when we regard the nature of the
subject, the use which has hitherto been made of it, and the acts of
the parties themselves, that we can hold this lane as any thing else
than a common way for foot passengers, and not for horses 5 and as
the parties are joint proprietors, no alteration can be made on the
state of the possession without the consent of each of them.
Lobj> President. — There are several flights of steps, which are rather
uncommon on roads for horses and carriages. Independent of every
other circumstance, they show that the lane was intended to be
used merely as a foot road for passengers.
Lord Craigie*— I visited the road, and it is impossible for any per-
son, on inspecting it, to conceive, that it could be intended for a
hone and carriage road. There are six steps of stairs in one flight,
by which alone it would be impracticable to make use of it as a
hone road.
Lord Gillies concurred.
W. Landers, — P. Crooks, W. S. — Agents.
Duke of Bcccleuch, Pursuer. — Thomson — Pringle. No. 44»
Sir W. A. CompiGHAMK, Defender. — D. qfF. Moncrciff—
Jameson.
Prescription — Minor.— Held,— 1.— That a party having possessed an estate on a
title from the Crown for upwards of forty years, had acquired a prescriptive right,
although his title bore that the Crown had right by virtue of the act of annexa-
tion, in which there is an express exception of the right of the Crown to such
lands ;— and,— 2. — That, in computing the period of forty years, the minority of
in heir-substitute of entail is not to be deducted.
The Collegiate Kirk of Dalkeith was founded by James Earl Nov- 30, isss.
4o£ Morton for a provost and a certain number of prebendaries, ibt Division.
and other inferior beneficiaries, reserving to himself, and to <his Lord Eldin.
iieirs and successors, the right of patronage. Among other en- " s*
dowments of this kirk were the lands of Howden and Dechmont,
m the barony of West Calder and county of Edinburgh. In
1586 the titular provost and prebendaries, with consent of the
patron, feued out these lands ; and in 1587 the feu-rights were
confirmed by the Crown, agreeably to the acts 1564, c. 88, and
1584, c 7.
By the statute 1587, c. £9> containing the general annexation
to the Crown of the temporalities of ecclesiastical benefices, an
exception jra* made of ' all landis, baronies, tenementis, an*
58 CASES DECIDED IN THE
'. nual rentis, and uther commodities quhatsumever, quhilkis per-
' tenit of befoir to quhatsumever benefice) greit or small, being
6 of laic patronages : To the quhilkis the said annexatioun sail
1 not be extendit, nor comprehend the same, to the effect that
* nane of the saidis laic patronis be hurt or damnifiet thairby.'
Again, by 1592, c. 158, it is declared* ' that it was never his
' Majesty's intention ather to prejudge the saids laick patrones
' in the patronages, or the; person provided to the said preben-
* daries and chaiplanries, of any part of the fruites and emolu-
c mentis contained in the antient fundationes maid be the said
5 laick patrones.9
And it was enacted, by 1661, c. 54, in reference to the vassals
of provostries, fee. 'that the entry of the saidis vassals by retour,
f &c. shall pertain to the laick patrons and their successors, who
' stand infeft in the said laick patronages holding immediately of
* his Majesty.'
The right of patronage of the above provostry, after remaining
for some time in the family of Morton* passed into that of Buc-
cleuch, and accordingly, prior to 1778, all the vassals of the lands
of Howden and Dechmont obtained entries from the latter
family. In that year, however, Sir William Augustus Cunyng-
hame, who was proprietor of Over and Nether Craig, (forming
part of the barony of Calder, and which held directly of the
Crown,) having acquired the lands of Nether Howden and
Nether Dechmont, (which held of the Duke of Boccleuch, as in
right of the laick patron,) resigned the whole of these lands into
the hands of his Majesty's commissioners, and expede a Crown
charter of resignation, on which infeftment was taken and re-
corded in September 1778. The qusequidem clause stated, that
the lands had been resigned into the hands of the Barons of Ex*
chequer, * tanquam in manibus nostris, immediatis superioribua
' proedictarum terrarum de Over et Nether Craig, cum decimis
* et pertinentiis de quibus semper tenebantur, et tanquam imme*
* diatis superioribus prsedictarum terrarum de Nether Howden,
< cum pertinentiis, virtute annexations superioritatis tetrarum
* ecdesiasticarum ad Coronam, sicut esedem perprius tenebantur
* de preposito eccleswe collegiate de Dalkeith.''
And the tenendas and reddendo clauses were thus expressed :
4 Tenendas et habendas totas et integras prsedictas terras, decimaa
* aliasque supra specificatas, diet. Domino Gulieimo Augusta
( Cunynghame, ejusque predict, modo infra mentionato, vis.—
* Dictas terras de Over et Nether Craig, eum decimis et pertmen.,
* de nobis nostrisque regit* successoribus, immediatis legidmis so.
* peripribus earundem, in liberft albafirmfi; et predict, terras de
COURT OF SESSION. . 59
1 Nether Howden et Nether Dechmont, cum pertinen., quae per*
4 prius de praeposito ecclesiae collegiate de Dalkeith tenebantur
* de nobis nostrisque regiis successoribus, tanquam immediatis
4 legitimis superioribus earundem, virtute annexations superior-
* itatis terrarum ecclesiasticarum ad Coronam, in feodo et haeredi-
1 tate in perpetuum, per omnes rectas metas, &c— Reddendo an-
' nuatim diet. Dominus Gulielmus Augustus Cunynghame, ejus*
' que predict, nobis nostrisque regiis successoribus, pro praedictis
1 terris de Over et Nether Craig, et decimis, rectoriis et vicariis,
( earundem et pertinen., proportionalem partem unius partis cat
i carum deauratorum, vel pro eisdem duos solidos argenti, apud
4 festum Pentecostes, nomine albas firmae, si petatur, tanquam alba
' firma divoria diet, totarum terrarum et baroniae de Calder, cu-
* jus dicta? terrae de Oyer et Nether Craig fiierunt partes: Et red-
* den. nobis, nostrisque regiis successoribus, tanquam devenien. in
4 loco praepositi ecclesiae collegiatae de Dalkeith, virtute annexa-
* tionis superioritatis terrarum ecclesiasticarum ad Coronam, vel
4 domino erectionis diet* prepositurae, vel illis jus ab eo derivant-
4 ibus, pro supramentionatis terris de Nether Howden et terris
4 de Nether Dechmont, diversas feudifirmae divorias subtus spe-
* cificat. viz. Pro predictis terris de Nether Howden, cum perti-
* netw, sumraam sex librarum trium solidorum et quatuor denar-
4 iorum monetae Scotia?, ad duos anni terminos consuetos, festa,
* via. Pentecostes et Sancti Martini in hieme, per equates poiv
1 tkmes, tanquam antiquam feudifirmam inde solvi solitam, nee-
4 Don summam trium solidorum monetae Scotia? pro annuft aug*
* mentadone rentalis novo? feud.,9 &c.
In virtue of these titles, Sir William was enrolled as a free-
holder in 1779, and. thenceforth possessed the lands.
In 1778 he expede a Crown charter of another portion of the
same lands, on which infeftment was taken ; but this having been
discovered by the agents of the Duke of Buccleuch, a reduction
w«s brought, and decree obtained. No objection, however, was
made to the titles relative to the other part of the lands, which
had been previously made up*
In 1819 Charles Duke of Buccleuch died, and was suc-
ceeded by his son, the present pursuer, who was then thirteen
years of age, as heir of entail. In December 1825 he brought
an action of reduction of the above titles of the defender, on the
ground that as he was. the true superior of the lands of Howden
and Dechmont, and as the titles of the defender were ex facie
inept,, seeing that, by referring to the act of annexation* they
showed that they had <been derived a non habente potesJ*tem ;
60 CASES DECIDED IN THE
and, at all events, as he had been minor during part of the de-
fender's possession, he was entitled to have them set aside.
In defence, Sir William founded on his titles and possession
for forty years as a title to exclude, and he contended,
1. That even although it were true that he had derived these
titles a non habente potestatem, yet as he had possessed without
interruption for upwards of forty years, a prescriptive right had
been obtained, and as the very object of prescription was to cure
bad titles, it was not competent to inquire whether they had been
derived from the proper superior or not.
2. That it was not competent to go beyond the deed itself;
and as it was affirmed upon the face of it that the Crown was,
by virtue of the act of annexation, the true superior, this must
be held to be the fact; and that no reference could be made to
the statute, which, in this matter, was merely the ground or war-
rant of the charter ; and,
3. That it had. been settled by a series of decisions that the
minorities of heirs-substitutes of entail could not be taken into
.consideration in computing the prescriptive period.
To this it was answered,
1, That as the act of annexation was a public statute,— -as
it expressly excepted laick patronages, — as every one must be
held to have been'acquainted with that public statute, — as refer-
ence was expressly made to it in the charter, and as it was essen-
tial to a prescriptive title that it should be ex facie clear and un-
exceptionable, otherwise there could be no bona fides, the de-
fender must be held to have known that his titles were derived a
non habente potestatem, and therefore to have possessed in mala
fide; and,
2. That although there were, no doubt, several decisions find-
ing that the minorities of heirs of entail were not to be deducted
in calculating the prescriptive period, yet their fallacy had been
pointed out by Lord Chancellor Thurlow in the Bargany cause,
and the question still remained open.
The Lord Ordinary ' sustained the title to exclude founded on
' by the defender/ assoilzied him from the action, and found ex-
penses due ; and to this interlocutor the Court, on advising Cases*
^adhered.
Lord Balgrat. — The esse of the pursuer is quite untenable. The
title of the defender is complete in itself, and he has Had forty years
possession. Even granting that the titles had been derived a non
domino, atill he is entitled to plead prescription, whereby any in-
quiry into that met, or into mala fides, is excluded. In the case of
COUBT OF SESSION. 61
Forbes of CaDtndar, (ante, Vol. I. No. 382.) a prescriptive title wis
rationed relative to coal, although originally it was excepted from
the conveyance ; but having been inserted in the subsequent titles,
and possession having been enjoyed for 40 years, the right to the
coal was held to be undoubted.
Loru CRAionc — In general, I concur in the opinion which has been
delivered. I have always understood that the<ezception of falsehood
in relation to prescription meant that the title was forged ;' but I
have some doubts whether it. would not apply where, ex facie of the
title, there is a manifest falsehood. It may also be doubted whe-
ther the superior could, in such a case as this, acquire a prescriptive
right, so as to give a valid title.
Lord Gillies. — It would be a serious question indeed, if we were to
deny effect to a prescriptive title, because it appeared ex fade of the
deed that the former titles had not been correctly deduced, or that
a wrong one had been stated. This is truly the nature of the ob-
jection which is now made.
Load Pmsimnt. — It can scarcely ever happen that there is a pre*
scriptive title without some falsehood connected with it. If the
title be in itself perfectly good, and derived from the true proprietor,
there can be no need of prescription, which is only necessary to
euro had titles. It may no doubt, as observed by Lord Craigie, be
a question, whether the Crown has acquired a proper prescriptive
right, as superior of the lands ; but that cannot affect the vassal, and
so we found in the case of Spottiswoode. Indeed the Crown is
superior of all the lands in the country ; and if no other superior
grants a title, the vassal may obtain one from the Crown ; so that
here it is not correct to say that the titles in question have been de-
rived a non habente potestatem.
Partner's Authority^}.)— 2. Stair, 12. 7.
Defender** JuMorities.— {\.)—3. Erak. 7. 4; Miller, Feb. 7. 1776, (10942);
Haiies' Deriaions, 378.
J. Home and J. Gibson, W. S— Tod and Hill, W. S. — Agents.
J. Rucieb, Pursuer. — D. qfF. Moncreiff-—More. No. 45.
X 6. C. Fischer and Others, Defenders. — Jeffrey-—Murray.
In the case mentioned ante, Vol. IV. No. 292, the Court re- Nov. 30. 1826.
mitted to the Lord Ordinary to consider the question of expenses, s© division.
His Lordship found no expenses due ; but the Court altered, and LordMackeo*
found the pursuer entitled to expenses, subject to modification. ' "e*
Aentov and Gbaxt, W. S-— T. Ewabt, W. S.— Agents.
02 CASES DECIDED IN THE
No. 46. ' A. Cranstoun, JoflN Hay, and Others, Pursuers. — Gillies.
] W. Scott, Defender. — BosweU.
Judicial factor— A. S. Feb. 13. 1730.— Held,— 1 .—That a judicial facto? loco tutoris
' under the above act of eedertint, is liable in interest upon interest on sums which
, he had neglected to recover in terms thereof j— and>- 3.— That, Jby neglecting to
comply with the rules of the A. S., he is not entitled to any commission,
Dec. l. 1826. Robert C&ahstoun died in February 1798. leaving an infant
1st Division ®on an(^ s*x daughters, some of whom were under age, and others
Lord Meadow. m nlajority. He was proprietor of the lands of Bongate; held
bank. peases of various farms; and was possessed of funds to a pretty
large amount. In the month of March of this same year, the de-
fender Mr. Scott was appointed factor loco tutoris for the minor
children, in terms of the act of sederunt 13th February 1730.
He entered into possession ; and, at the distance of six months
thereafter, lodged in the clerk's hands inventories containing a
general specification of the funds and effects of Mr. Cranstoun.
He, however, never lodged any other account until he was Called
it! this action, after the lapse of IS years. '
' With a View to recover the funds, he employed a Mr. Reid,
writer in Jedburgh, as his agent, who kept a current account of
the different items which he realised, and of the sums which he
expended, and brought out occasionally the balance thence aris-
ing.
\ Mr. Cranstoun had lent three sums of <£300, <£122 : 1 3 : 6, and
£9.5 : 5 : 9, to George, James, and Robert Bell, jointly and seve-
rally. Robert died bankrupt a few months after Mr. Cranstoun*s
death; and, after considerable delay, the defender realized, at Whit-
sunday 1808,' about ^300 from the estates of the other two obli-
gants, who in the mean while had become insolvent.
The defender also employed Messrs. Riddel! and Gillon,
writers to the signet, to lend out certain sums of money, which
they accordingly did ; but although he alleged that the interest
of these sums was regularly received by Mr- Gillon, yet he did
not uplift it from him, and employ it at interest for behalf' of the
minors.
Prior to his death, Mr. Cranstoun was creditor by bill fpr
£155 of three persons oftbe names of Dickson, Gray, and Rob-
sop, and which was indorsed by a person of the name of Potts.
The three former became bankrupt ; but although Potts remained
solvent, no steps were adopted by the defender to recover the
debt for a considerable time thereafter.
In 1809 the pursuer John Hay (who had married one of Mr.
COURT OF SESSION. €0
Cranstoun's daughters) presented a petition and complaint to the
Court against the defender for having violated the act of sede-
runt, and praying to have him ordained forthwith to lodge ac*
counts, and removed from his office. Thereafter he, together
with the other children, brought an action of count and reckon-
ing; and the petition having been remitted to the Lord Ordinary,
and the defender having been removed, the two processes were
conjoined. In defence, he denied that he had any funds in his
hands at all, and alleged that at all events arrestments had been
executed against him since the date of the action. A great deal
of procedure ensued, and several remits were made to an account-
ant, who ultimately reported a balance of about £500 as being
due by the defender. This report being objected to, the chief
questions winch arose were,
1. Whether the defender had duly complied with the act of
sederunt, and had exercised proper diligence in recovering the
funds belonging to the estate under his management.
2. Whether he was chargeable with interest upon interest of
the funds in his hands, or which he ought to have realized, and
if so, from what period ; and,
' 3. Whether he was entitled to any commission as factor-
On the part of the pursuers it was maintained,
1. That by not lodging accounts in terms of the act of sederunt*
he had exposed himself to the penalties thereof; and that as he
had been negligent in recovering the debt from Bells, he must
be liable for that part of it which had not been realized.
2. That he was liable for interest on each principal sum after
the expiration of one year from the time when the same became
due: — that that interest must then be regarded as capital, and in?
terest charged upon it :— that in reference to the accounts of his
agent, Mr. Reid, the same rule must be followed, without regard to
the periods when he thought proper to strike a balance ; and that if
the defender did not recover the interest from Riddell and Gillon,
and lay it out at interest, he was blameable in so doing, and must
be liable in that interest, together with interest thereon, according
to the shore principle : — that he was also chargeable with, interest
upon interest of the funds in his hands, notwithstanding the ar-
restments, because, as he had denied that there were any such
funds, the pursuers were thereby prevented from loosing the ar?
restments ; and as he ought to have paid any balance in his hands
when called on by the petition and complaint, he could not avail
himself of that defence to protect him against liability for in-
terest; and,
3. That, as be h^d violated the act of sederunt* he had no right
to any commission whatever.
«4 CASES DECIDED IN THE
To this it was answered,
' 1. That the defender had lodged accounts within the requisite
period, and although he had omitted to do so annually there-
after, yet no loss or injury could be alleged to have been thereby
sustained ; that from the nature of the estate, and from the con-
fusion in which it had been left, and from Mr. Cranstoun having
kept no books, it had become necessaiy to employ law agents,
and as much activity had been exerted in recovering the funds
as in the circumstances was practicable.
2. That as there were continual outlays, it became necessary to
keep an account-current with the law agent ; and that as the ba-
lance was continually fluctuating, and as the defender had real*
ized the funds without undue delay, it was not consistent with
equity that he should be subjected in interest upon interest; and,
3. That although perhaps he had deviated in some respects
from the act of sederunt, yet as his duty had been of a most la-
borious and difficult nature, he ought to be found entitled to com-
mission.
The Lord Ordinary found ' that the accounts of the defender
* ought in every particular to have been made up upon the
' principle that he was due interest from one -year after the date
4 when each sum was or might have been recovered ; and that
* it can make no difference upon the accounting, whether the
1 money was or ought to have been recovered by himself, or by
* an agent for his behoof ; therefore that the interest ought to be
* charged, not from the date of the balance of the annual accounts
* furnished by Andrew Reid, but from one year after the date
' when the several sums were received by him on account of the
- * defender as factor : Finds, it being admitted that George,
* James, and Robert Bell were conjunctly and severally bound
< for the debts of jPSOO, £122 : 13 : 6, and £25 : 5 : 9, and
* that although Robert is represented to be insolvent, it was the
4 duty of the defender to have done his uttermost to have re-
* covered from the co-obligants, who were otherwise ; and that no
' evidence has been produced of steps for that purpose having been
4 taken : Finds that the factor must be charged with the prin~
c cipal sum of the said debt which has not been recovered, and
4 with interest on the whole of the said debt from one year after
' the same became due, and also with interest upon the annual
c rent thereof from one year after the term of payment of such
' * annual rent: Finds that it was incumbent on the defender to
* have satisfied himself that the debts due by Riddell and Gilloa
* were duly lent out and received in terms of his directions to
* those agents, and that he must be liable in interest upon the an-
COURT OP SESSION. % 66
* nual relit of such sums from one year after the terms when the
* same would have been payable, had his directions been duly ob-
4 served : Finds that Dickson, Gray, and Robson having become
* insolvent, it was incumbent on the defender to have taken im-
c mediate steps for recovering the debt due by the cautioner Potts ;
c and no evidence being produced sufficient to establish that such
r steps were taken, finds that the defender is liable in legal in-
* terest on the said debt from and after twelve calendar months
( from the period when the same became due by the principal
' debtors : Finds that the defender ought to be charged with in*
€ terest on the funds of the minors, after the expiry of his factory,
' in the same manner as before, excepting always on such sums
' as were duly attached in his hands by legal diligence, and for
' which interest, at the same rate as was payable by the public
' banks, is alone due : Finds that in all cases the claim of factors
* appointed by the Court of Session, for remuneration for the
* trouble incurred by them in the matters committed to their
* charge, is founded altogether upon equity, and that its amount
* must depend upon due consideration of the extent of the fund,
* the degree of trouble incurred, and the conduct of the factor
* himself, and that either to the effect of disallowing commission
c altogether, or of modifying the same : Finds, that it being ad-
' mitted on the one hand that the defender failed to lodge his fac-
* tory accounts, in terms of the act of sederunt, during those years
* when the factory existed, while, on the other, no injury has been
' alleged to have been incurred by the estate of the minors by the
* said failure, the claim to commission ought to be sustained, but
* subject to great modification : Therefore, having considered the
* peculiar circumstances in which the defender was placed, finds
c that the commission allowed to the factor, at the rate of five per
* cent., ought to be restricted to two and a half per cent., and that
* that allowed to him at the rate of one per cent, ought to be con-
* tinned at the same rate, from which will fall to be deducted
' the sums in name of commission charged in Reid's accounts,
* and finds hina entitled to credit for such restricted rate of com-
* mission accordingly ;' and remitted to the accountant to report.
Both parties having reclaimed, the Court found, * That the
€ sums of money, principal and interest, which were in the factor's
* bands at the expiry of the factory, shall be at that period accu-
' initiated into a principal sum bearing legal interest from that
' date, and that the arrestments used in the factor's hands do not
1 interrupt the currency of the said interest, or the liability of the
* factor to pay the same ; and, secondly, That, in the cbcumstan-
* ces of the case, the factor is not entitled to receive any commission
4 fbr management of the said estate ; but, quoad ultra, adhered.1.,
VOI., V. E
66 CASKS DECIDED IN THE
Lord Baxqray.— My only doubt relates to, dm inode of accsupnjntyng
the interest after the expiration of the office* It is trae that, during
its existence, the factor was bound to accumulate annually, and that
he must be chargeable with accumulations accordingly ; but, after
the office was at an end, be became an ordinary debtor, and thence-
forth I think that he was liable in simple interest only. ]n re-
gard to the claim for commission, it appears to me that this case
affords a very proper opportunity for showing that we will strictly
enforce the duty of factors. Where they perform that duty properly,
and lodge regular accounts, so as to afford a check against them, we
allow mil ample commission. It is no answer to say, after the lapse
of a long period, that no km or injury can be shown to have been
thereby sustained. The very circumstance of the accounts not
being lodged disables the party from condescending en his loss,
and therefore we should rigidly enforce this rule. Taking the whole
circumstances into consideration, I am satisfied that no commission
ought to be allowed.
Lord Oraigie^— I am of the same opinion ;> and although is may be
hard to inflict such a penalty, I think H absolutely necessary, m the
circumstances of this case, to refuse commission ; and it appem to
me that.it would be proper that our interlocutor should be inserted
in the acts of sederunt.
Lord GiLLiBS^^In depriving this factor of commission, we are doing
nothing extraordinary, but merely enforcing a proper and, correct ruje»
Lord President.— -I am of the same opinion. A motor, wader the
act o£ sederunt* is bound to accumulate the interest, and principal at
stated periods This accumulated fund is thenceforth a capital
which must, bear legal interest, just as if he had. granted, a bond for
it. Aa to the arrestments, I rather think that the answer which
> has been made by the pursuers is good ; but at all erenta, as it ap-
pears that these arrestments were not executed till after this action)
had been brought t^he defender ought to hare been then ready to
hare paid the sum ; and as he delayed to do so, he must be liable
in interest. I am also perfectly clear that no commission should be
allowed,
W. SMiTfldr-J. Gbmg, W. S<— tAgenta.
[ No. 47. J- Sproat, Pursuer.— A ofF. MoTurriff-^Bntcc*
W. AfuHE and Others, Colitis's Trusx^ss, Defenders—
FviUrton—M&itlafid.
Proces+—Stot. 6. Geo, IV. c. 120.— Objections to a record, as irregularly prepared.
Pec. 1. 1886. ^ Sproat, a creditor of the late James Curie* brought an ae-
1st Dmsioir. ^on» early » 18**, against Mure and others, hi& trustee^ CPPclud-
Lord Meadow tog for count and reckoning* and payment of his debt ' After a
bank.
H.
COUHf OP SES&IOM. 6Y
great deal of procedure under the old forms of process, the Lord
Ordinary, on the 12th November 1885, issued notes of his opinion,
that certain preliminary defences should be repelled, and others
of a peremptory nature should be sustained ; but that the pursuer
should give in a condescendence of what he averred relative to
the intromission by the trustees with certain subrents. Accord-
ingly, on the 18th of that month, he appointed the < pursuer to
give in a condescendence, framed in terms of the late statute
and act of sederunt, stating articulately the facts he avers and
offers to instruct, as set forth in the foregoing note,* and that
within 14 days, to be seen and answered within 14 days there-
after ; and when so lodged, appoints- the same to be revised ;
the revised condescendence, accompanied with a note of pleas
in law, to be given in within 14 day* thereafter.' His Lordship,
however, did not pronounce any interlocutor on the other points
of the canse. Condescendence and answers, with notes of pleas
in law, were acednfingly lodged relative to the subrents, and the
record was closed. A debate then took place ; and a multiple-
poindrog having been brought by the trustees, the Lord Ordinary
conjoined it with the action of count and reckoning, and there-
upon reported the whole cause to the Court on revised Cases.
When it was moved in the short roll, the Court considered the
record as improperly made up, delayed giving judgment, and
thereafter, to prevent further expense, recommended the parties
to take the case out of Court by submission.
Lord Puksidbht- — This is one of those records to which I alluded
in the early part of the session ; and if we pass it over, the new forms
may be thrown aside as utterly useless. The condescendence is not
even in terms of the old act of sederunt. The facts and law are
mixed together, and there are long argumentative passages. I ob-
serve also that the parties here, as in many other cases, do not state
that they ' aver and offer to prove' that which they condescend on,
and which is expressly required by the statute. After reading these
papery I resolved that I would not judge on such a record, but
leave your Lordships to do what you thought fit.
Dean of Faculty. — The case comes before the Court under somewhat
peculiar circumstances. It originated under the old form of process,
and, till latterly, was prepared accordingly. In the Outer House
both parties endeavoured to have the case put into a different shape ;
hot it appeared to the Lord Ordinary that the record should be con-
fined to one point only, and in this way the condescendence is
United to lint point alone. As this was the first cause on which it
atteitfptod to erigraft the netr forms on the old, some indulgence
it So be dtafltd. it' is safitoient, however, to state that the
e2
68 . CASES DECIDED IN THE
papers were laid before the Lord Ordinary, who did not see any ob-
jection to them ; that he adjusted the record, and then heard the
parties, and afterwards ordered Cases on the whole cause.
Lord President*— But you were certainly to blame in putting in
such a condescendence, and the Lord Ordinary ought not to have
received it.
Dean of Faculty* — I do not say that the condescendence is correctly
drawn; but, in the peculiar circumstances under which this case
comes before the Court, we hope that you will give us judgment.
FuUerton. — The respondent was under the necessity, in framing his
answer, to meet the condescendence of the pursuer ; but we stated
in the outset, that it * had been prepared with an anxious disregard
' both of the late statute and of die act of sederunt.'
Lord B a lor ay. — In the circumstances under which this case came
before us, perhaps the parties may be ordered to give in a note of
the points on which our decision is required.
. Lord President-— We have no authority for doing so ; and as the
case has been prepared under the statute, we must observe the rules
enjoined. by it, A respondent stands in a peculiar situation, and
may be led into irregularity by his opponent ; but we cannot on
that account disregard the statute. And I take this opportunity of
requesting, that the country and Parliament may understand, that if
this record be received, the violation of the statute has not been
sanctioned by me.
Lord Gillies. — I am equally resolved strictly to enforce the forms
prescribed by the statute ; but there is a peculiarity here, from the
circumstance of the case having been prepared partly under the old
and partly under the new system.
' Lords Balgrat and Craig* e having also expressed similar senti-
ments, the case was at first delayed, and thereafter a recommenda-
tion to submit the case was given.
D. Turnbull, W. S-— -T. Corrie and D. Welsh, W. So—Agents,
No. 48. Miss Justice, Pursuer. — D. ofF, Moncreif— Brown.
W. B. Callbvdeb, Defender.— Sol.-Gen. Hope—Bair<L
fParrayutice— Passive Title.— A party having purchased lands with the price of
teinda sold by him under a warrandice against augmentations, and taken the
lands to himself in liferent, and to his son and a series of he*rs.in fee ; and aug-
mentations having been granted ; and an adjudication founded on the warrandice
having been brought— Held that an heir, who had made up titles to the fiar, and
not to the lifferenter, could not oppose it.
Dec. 1. 1826, Sie James Justice, proprietor of the estate of Crichton in
1st DivisioK. the county of Edinburgh, conveyed it, in 1785, to George Living-
Lord Eidin. stone, by a disposition ex facie absolute ; but which was qualified
s. by a back bond, by which Livingstone declared that he held the
Sf w Sj^
COURT OP SESSION. 09
estate in trust to enable him to sell the lands to pay the debts of
Sir James, and to invest the residue in such manner as he should
appoint Sir James having soon thereafter died; the above trans-
action was confirmed by his son James, who at the same time
conveyed a small property of his own, called Rosehill, to Living*
stone in trust; but stipulating that the residue of the price of both
estates should be invested in the purchase of lands for behoof of
himself in liferent, and his son Alexander and a series of heirs in
fee. In 1788 Livingstone sold the estates, together with the teinds,
to Hark Pringle, Esq. in whose favour a disposition was granted
with- consent of James Justice. This deed contained the follow-
ing clause of warrandice : ' And further, because the said Mark
4 Pringle has paid as great a price for the teinds of the said lands,
* and others above disponed, as for the stock, therefore I the
* said Mr. James Justice bind and oblige me and my foresaids
' to warrant, acquit, and defend the said Mark Pringle from all
4 ministers' stipends, future augmentations, and other burdens of
* whatsoever nature, imposed or that shall be imposed upon the
4 said teinds, parsonage or vicarage,' except the stipend then
payable to the minister, which was 10 bolls of bear, 15 bolls of
meal, and <£466 : 18 : 4 Scotch money. Mr. Pringle then granted
a bond for the price, into which there was introduced this clause:
And for the said Mark Pringle and his foresaids their further
security, and in corroboration of the foresaid clause of warran-
dice contained in the said disposition, so far as it concerns future
augmentations of minister's stipend, or other burden that may
be imposed on the said teinds, it shall be lawful to the said
Mark Pringle to retain so much of the sums contained in the
said bond as may be sufficient to answer any augmentation of
the said teinds, until the said George Livingstone and James
Justice shall, at the sight of Mr. Robert Craigie of Glendoich,
and Mr. Henry Home, advocates, or failing either of them, at
the sight of the survivor, secure so much of the said sums in
such manner as the said Mark Pringle and his foresaids may
have sufficient real warrandice against such eviction, by aug-
mentation of stipend, or other burden imposed upon the said
teinds; and which eviction is hereby agreed to be rated at 24
years purchase thereof, being the price paid for the said whole
lands and teinds.1 Thereafter Mr. Pringle paid the price;
and there being a reversion, Livingstone purchased the lands of
Ugston and Over Howden in Berwickshire. The titles by which
these lands were conveyed, bore that the price had been paid
* out of the reversion of the price of the lands and barony of
4 Cricbtori/ and they were taken * to and in favour of the said
to CASES DECIDED IN THE
* James Justice apd Mfs. Margaret Murray, his wife, wad the
< longest liver of them two, in liferent, and to Alexander Justice,
« their son, in fee, and the heirs, male or female, to he procreated
« of his body ; whom failing, a series of bebfr-snbstittites.' In the
disposition of Ugston, it was provided that * the said lands and
< estates above disponed are and shall be burdened, in real war-
* randice, with the payment of any augmentation of stipend thai
« shall at any time hereafter be imposed upon the lands and estate
c of Crichton in terms of the clause of absolute warrandice ooft-
« tained in a disposition by the said Mr. James Justice to Mark
« Pringle, Esq. of Crichton, dated the 14th day of July 1738,
' and with power to the said Mr. James Justice, for the said
c Mark Pringle, his heirs and successors, their further security,
< to grant them an heritable security and infeftmeni of warran-
' dice upon the said lands against the said future augmentations:'
No such clause, however, was introduced into the titles of Over
Howden. James. Justice was accordingly infeft both in Ugston
and Over Howden in fee ; and he granted an heritable bond of
warrandice over the former, confirming the former obligation, and
binding and obliging himself, and his ' heirs and successors what-
' soever, not only to warrant, acquit, and defend the said Mark
' Pringle and his foresaids, from all ministers1 stipends, future
' augmentations, and other burdens of whatsomever nature im-
' posed or that shall be imposed upon the said teinds, parsonage
' or vicarage, of the said lands and barony of Crichton, except-
' ing the said ten bolls of bear and fifteen bolls of meal, and
* £466: 18 : 4 Scotch, being the stipend presently payable out of
' the foresaid teinds to the minister of the parish of Crichton ;
' but also, in case of any eviction of the foresaid teinds beyond
' the said stipend presently payable, to content and pay to the
' said Mark Pringle and his foresaids such sums as shall be equal
' and amount to twenty-four years purchase of every such evic-
' tion, and that at the term of Whitsunday and Martinmas at
'which such augmentation shall commence, or other burden be
' imposed, respectively.'1
On this bond Mr. Pringle was infeft
James Justice possessed under the above titles in liferent till
his death in 1768 ; and his son Alexander being also dead, his
surviving- son. James (second) made up titles to Alexander, and
was infeft.
The minister of Crichton having obtained several augmenta-
tions, which were allocated upon the estate, the lands of Ugston
were adjudged in relief. Thereafter the pursuer Miss Justice
having succeeded to her father James (second) as heir of the
COURT OF SESSION. fl
est** of Over Howden, and the defended Mr. Callender having
acquired right to the estate of Crichton, and several additional
augmentations having been granted, he obtained in absence a de*
ereet of adjudication, in virtue of the clause of warrandice against
the estate of Over Howden. ,
Of this decree Miss Justice brought a reduction ; in which she
contended,
1. That As James Justice, by whotd the obligation of warran-
waa granted, was a mere liferenter, and as she had not made
up titles to him, and did not represent him, she was not bound
by his obligation; and,
£. That although the titles had been taken by him to himself
in liferent, and to his son in fee, no passive title was incurred
by the son accepting of such a right, and therefore tione could
be imposed on her by taking the estate as the successor of that son.
To this it was answered, That the lands of Over Howden had
been bought with the price which had been paid by Mr. Pringle
in consideration of the sale of the estate of Crichton, and of the
obligation of warrandice ; that it was not in the power of James
Justice, by taking the titles to himself in liferent, to prevent
these lands being attached for implement of his obligation ; and
that Miss Justice could not take them free from such claim, and
without representing him.
The Lord Ordinary repelled the reasons of reduction, and the
Cottrt adhered*
LqaD Craigie- — The interlocutor is quite right. The obligation is
effectual, and the lands arust be liable in relief to the defender. I
do not go upon the passive title of perceptio hsereditatis, but that it
was impossible for die pursuer to take these lands, and not be sub-
ject to the harden ef the obligation.
Lord Balgray. — I am of the same opinion. The lands were pur-
chased with the very money which was paid in consideration of the
obligation by James Justice. He, no doubt, took the titles in far
fMr of Mi strii in fee, but he could not thereby remove diem front
fiabffity for implement of this obligation.
Loui> Giuis»*»— This is not a question of passive title ; and, to sim-
plify the cm* suppose that it had arisen during the Kfe of Alex-
mi» Justice, the fiar: Cetdd he hare disputed that the fend* were
liable to be attached for this debt? Assuredly not; aid if not, neither
can the pursuer. *
Lord President. — I am of the same opinion ; and although at first
sight this may appear a hard case, yet in truth it is not so. If
the full price for the teinds had not been paid, there would have
been no money with which to purchase these lands ; and as the do-
7* CASES DECIDED IN THE
fender lias been called on to pay these augmentations, it is perfectly >
just that he should be allowed to attach the lands which were pur-
chased with the money paid for these teinds.
Pursuer's Authorities.-*. Stair, 7. 7 ; 3. Ersk. 8. 92 ; 3. Bank, 7. 3L
Defender's Authorities. —3, Stair, 7- 7; 3. Bank, 7. 3; Elliot^ Nov. 16. 1(198,
(9782.)
J. and W. Jollh, W. S— A. Dallas, W. S— Agents.
■
No. 49. D. JTNeilx, Pursuer.— M Weill.
Lieut-CoL M'Neill, Defender. — Baird.
Dec 1. 1826. This was an action of count and reckoning, in which, after
2d Division, considerable procedure before the Lord Ordinary, the Court re-
Ld. Cringletie. mitted to an accountant ; and he having reported that there was a
B- balance due to the defender of £180, or of £757, according as
certain legal principles maintained by the one party or the other
, were adopted, the Court, of consent, divided the difference, and
remitted to the Lord Ordinary to determine as to expenses.
J. Bbowx, YV. k— J. and W. Firbisr, W. S Agents.
No. 50. W. and J. Ramsay, Suspenders— Damdd.
J. M'Leish, Charger. — Neceoes.
Dec. 2. 1826. L. O. refused a bill of suspension of a decree of the Sheriff of
1st Division. Edinburgh under special circumstances, and the Court adhered.
Bill-Chamber. x> r« ▼ r^
LordMedwyn. K# <-A*»NS,— J. Gbay, W. S— Agents.
No, 51. J. Spence.— Jeffrey— D. Macfarlane.
J. ^±mv.—&kene~Buchanan.
Competing.
SeF**stration~7'rustee—PrKe€s^.H<ild<--l .—That it ii not a valid objection to a
candidate for the office of trustee on a sequestrated estate, that his partner in
business is trustee on the estate of a party against whom it is alleged claims
exist, and that he ia cautioner tar his partner ;— and,— 0.— That it is a good per-
sonal objection against a candidate for the office that he nudes ia Edinburgh,
and that the sequestrated estate is in Glasgow.— Question raised, whether com-
petent to prepare a cause of new after the record is closed.
•• • .
1>ec- 2- 182& The «■»*• of John ATLuckie, plasterer in Glasgow, was se~
1st Divuiox. questr«ted in 1806 ; and, after some intermediate trustees, James
Urd Mcdwyn. Watson was appointed to that office, and had considerable intro-
H. missions with the funds. In consequence of h« bankruptcy, and
the sequestration of his estates, Watson was removed ; and a com-
COURT OP SESSION : TS
pethkm then arose for it between Eadie, who resided in Glasgow,'
and Spence, accountant in Edinburgh*
At a meeting of the creditors for electing a trustee, it was obi
jected by Spence, That as Eadie was the partner of a Mr. Miller
who had been appointed trustee on the estate of Watson, and
was his cautioner ; and as that of M'Luckie had claims against
Watson, which would require much discussion; and as Eadie
and Miller must be considered as identified in point of interest;
be was not eligible to the office.
To this it was answered, That they were not in partnership as
trustees, but only as agents and accountants, and that there was
no such connexion between them as to prevent him from doing
his duty.
On the other hand Eadie objected, That as the estate was si-
tuated in Glasgow, and the creditors resided there, and as Spence
rended in Edinburgh, he was not entitled to hold the office.
In answer to this Spence pleaded, That his residence in Edin*
burgh was not a personal objection, but resolved merely into a
question of expediency, of which the creditors alone were the
proper judges ; and that in this case there was no inexpediency.
Both competitors having been elected by different parties of
creditors, and disputes having arisen as to which of them had
the majority of votes, and each of them having presented peti-
tions for confirmation, the case was remitted to the Lord Ordi-
nary to prepare the cause. Condescendences, both as to the per-*
aonal objections, and as to the objections to the votes, and rela-
tive notes of pleas in law, were prepared, and the record closed ;
and the Lard Ordinary thereupon reported the case to the Court,
stating that he was of opinion that the personal objection against
Eadie ought to be sustained. The Court, however, again re-
mitted the case to his Lordship, to prepare the cause in relation
to the personal objections alone ; in consequence of which he ap-
pointed that part of the record to be printed, and thereupon re-
ported the question on Cases, accompanied with this note : — c The
' Lord Ordinary, when this competition was originally before
' him, conceived that the record was so full, that the Court
* would be enabled easily to dispose of the personal objections
' without Cases ; and he gave his opinion merely, and not a judg-
c ment, on the point, by which means the party who, as he con-
' ceived, should be preferred, had it in his power to carry the
4 case immediately to the Inner Hojise ; and thus a trustee might
* have been confirmed this session, which seemed a very desirable
* object for the estate at present, in consequence of the former
* trustee having been dismissed, not being under any interim
* management whatever. The Court, however, having remitted
7* {2ASES DECIDED IN THE
* the case again to prepare and proceed in the cause in term* of
* the act of Parliament, by which it is supposed the act of sede*
* runt is meant, without any further instructions, the Lord Ordi-
* nary, was of opinion that he had no power to touch the record
' already made up ; and that all be could do was to direct those
« parts of it which relate to the personal objections to be printed
' separately— a suggestion which he formerly made to the parties,
' but which he did not think he had any power to enforce. As
' he sees no advantage in disposing of the personal objection!
* himself, which would certainly not be acquiesced in, so that the
' Court could not confirm the trustee this session, even should
' tbey concur in the opinion of the Lord Ordinary, he has thought
* it best to report the cause ; and when he does so, he is bound to
< appoint Cases, in terms of section 88d of the act of Sederunt
* 158th November 1826/
Before the case was advised, Miller had obtained a discharge
as trustee on Watson's estate ; and Eadie thereupon contended,,
that even if the objection against his eligibility had been well
founded, it was thereby obviated. To this Spence answered,
That as there was no mention of that circumstance in the record*
and no leave had been obtained to enter it as res noviter, it could
not be listened to ; and even if it could, still the question must
be judged of as at the date of the meeting. The Court, after
being equally divided, and taking time to consider, c repelled the
< personal objection stated to the petitioner John Eadie being coa-
( firmed trustee, and refused the desire of the petition for John
* Spence, and sustained the personal objection stated to him ; and
* confirmed the petitioner John Eddie's nomination as trustee on
' the sequestrated estate within mentioned.'
Campbell and Burnside, W. S— J. Greig, W. S. — Agents.
No. .52. Sir A. C. Maitland Gibson, Bart and Others, Advocators. —
Skene — Gibeon-Craig .
J. Wills, Respondent— Whigham.
Arrestment*— Held that the arrester is in no better situation than the comnlon
debtor, and that he cannot recover where the common debtor could not do **.
bee. St. 1826. On the 19th of March 1823, William and Andrew M'Ewan
in Dmsiow P80*** a bill to Wills for £$Q, payable two months after date,
LonQEldin. which they failed to pay. On the 1st of October 1823, Sir Maik-
op land Gibson and others, as trustees on the Corstorphine district
of roads in the county of Edinburgh, entered into a contract with
them for making a piece of road, by which the trustees bound
themselves ' to content and pay to the said William and Andrew
COURT OF SESSION. ; W
ATE wan, their respective heirs, executors? or assign*1 n, the sum
of jPIOOO sterling, and that quarterly, in the proportions fol-
lowing ; Tip, the ma of JB9BD on the first Wednesday of the
month of January next, — the like sum of «££50 on the 1st of
April thereafter,— the like sum of £960 on the first Wednesday
of July thereafter,— and the balance of the said contract-money
on the first Wednesday after the said work is completely fin^
ished, in terms of this contract, and taken off the hands of the
contractors as such by the said trustees.' On the other hand,
the ATEwans came under an obligation c that the whole work
was to be done agreeably to the plan and section aforesaid, and
what is heron specified, in a complete, substantia], and workman-
like manner, and to the satisfaction of the said Sir Alexander
Charles Maitland Gibson, Baronet, or whom he and the other
trustees may appoint to inspect the work ; and the whole to be
completely finished by the 1st day of October in the year 1824,
under the penalty of i?100 sterling.9
Immediately thereafter M'Ewans began to execute the work ;
and on the 19th of December they bad performed work to a
greater value than the amount of the debt due to Wills, who, of
that date, executed an arrestment in the hands of the trustees*
The M'Ewans, however, were unable to proceed with the work,
and in consequence the trustees were obliged to employ people
to do so ; and the money agreed td be paid to ATE wans was laid
out at the sight of the trustees in executing the work. Wills
then brought an action of forthcoming against them before the
Sheriff of Edinburgh, and contended that as, at the date of the
arrestment, the trustees were indebted to the If Ewans in a sum
exceeding £20, he was entitled to recover it from them. To this
it was answered, That although work to that extent had been per-
formed, yet no such sum was due ; and that so far from the trus-
tees bong debtors of M'Ewans, they were creditors of them in
consequence of their failure to perform the contract.
The Sheriff having decerned against the trustees, they brought
an advocation, in which the Lord Ordinary assoilzied them, and
the Court adhered.
*
The Court held that the arrester could be in no better situation than
the common debtors ; and as they could not have insisted for pay-
ment from the arrestees, it was impossible that the arrester could do.
so.
Advocator*' Authority. — 3. Erik. 6. 10.
ft AutAorites.—Cone, Jan. 31. 1705, (757); Pender, May 27* 1824,
(ante. Vol. III. No. 47.)
A* Maitlaud, W. S*— J. Macandrbw, — Agents.
16 CASES DECIDED IN THE
• *
No. 53. J. Kino and Others, Pursuers.— Greenthields.
J. King and Others, Defenders.— Scl<-Gen. Hope*
Dec. 5. 1826. The Lord Ordinary having assoilzied certain parties who were
iTvibiox sue(* uP°n l^e Vass^ve tides, the Court remitted to him to inquire
Lord Eldin. into the facts.
D. '
Campbell and Mack, W. S*— W. A. Martin, W» S«-— Agents.
No. 54* C- Macxie, Suspender. — Brownke.
Harvey, Hall, and Company, Chargers.
Legal Diligence— Ce trio Bonorum.— A party having conveyed all his property in
trust for behoof of his creditors, under which it was distributed among them, and _
, having obtained decree of cesslo, and executed the requisite disposition, and
horning having thereafter been used against him on a debt prior to the cessio— J
Held,— 1.— That he was not entitled to suspend on the ground that there had
been no discussion under the disposition omnium bonorum in the cessio, it not
being alleged that he had acquired any funds subsequent to the date of the trust,
deed ;— but*— 2.— Thai he was warranted in bringing a suspension as to per.
sonal diligence, there being nothing on the face of the charge to show that the
creditor was to restrict his diligence to poinding.
# ♦
Dec. 5. 1826. Macxie, having been incarcerated a short time after execut-
2d Divisiov. inS a trust-disposition of all his property for behoof of his ere-
Bill-Chamber, ditors, raised a cessio, in which he obtained decree, and granted
Lord Medwyn. the usual disposition omnium bonorum. About a year afterwards,
B* he Was charged on letters of horning, for payment of a debt incur-
red prior to the decree of cessio, by Harvey, Hall, and Company,
who were proceeding to poind certain effects which they alleged
to be his. He thereupon presented a bill of suspension, on the
grounds,*— 1. That the decree of cessio secured him from personal
diligence ;— and, 2. That a creditor, prior to the cessio, could not
attach his effects, without showing that all the funds falling un-
der the disposition omnium bonorum had been exhausted. Har-
vey, Hall, and Company produced a state, showing that under
the voluntary trust-deed the suspender's whole funds bad been
distributed among his creditors, for the dividend of which they
gave deduction ; and they contended that this was sufficient, as
he did not allege that he had any funds whatever to be conveyed
by the disposition in the cessio. The Lord Ordinary passed the
bill so far as respected personal diligence, but refused it quoad
ultra, and found the suspender liable in expenses. The Court
adhered, but allowed a modification of the expenses, on the
ground that the suspender was entitled to be completely protected
COURT OP SESSION.
T7
against the risk of personal diligence ; and although the chargers
alleged that they had communicated to him that the only object
of the horning was to enable them to use the diligence of arrest-
ment and poinding, yet nothing appeared on the face of the charge
to give him an assurance that personal diligence was not to be
proceeded with.
P. Coupkb, W. &—A. Donald, W. S-— Agents.
J* Hamilton, Advocator. — Skene— MaidmetU.
Du sir's Trustees, Respondents.— Cockburn.
Process.— Incompetent to hold copies of a summons and interlocutors which bad
been lost equivalent to the originals, except by consent of both parties.
Hamilton having brought an advocation of an action insti-
tuted against him by Dune's trustees before the Judge Admiral,
of which the original summons and interlocutors (as he alleged)
had been lost, produced copies, which he offered to hold as a suffi-
cient warrant to the clerks to extract. The respondents, how-
ever, refused to concur with him in holding them to supply the
place of the originals ; and the Lord Ordinary thereupon, * in re-
* spect of the refusal of the respondents to concur in the proposal
* of the advocator/ sisted the process, to give time for proving
the tenor of the summons and interlocutors. Hamilton then re-
claimed, and contended that if he, the defender, agreed to hold
the copies produced as the originals, so that the pursuers might
obtain an extract of their decree, that was all they could reason-
ably demand, and that they were not entitled to withhold their
concurrence ; but the Court unanimously refused his reclaiming
note.
J. J. Faun, W. S.— A. Shoddy,— Agents.
J.. Howie, Petitioner. — Forsyth.
No. 55.
Bee. 5. 1896.
2d Division.
Lord Macken-
zie.
M'K.
No. 56.
So Division.
M'K.
Curtstor Bonis. — In a petition for the appointment of a curator Dec. 5. 1826.
bonis to an old man in a state of mental imbecility from paralysis,
authority was craved for raising an action of reduction of a deed
alleged to have been executed on deathbed in prejudice of this
person, who was heir at law of the deceased. The Court ap-
pointed the curator, but declined to grant any specific authority
for raising the action.
J. Stuart* — Agent.
78 CASES DECIDED IN THE
No. 57- Y. Thottee, Pursuer.— &>2.-G*n. Hope — Anderson.
W. Trotter and Others, Defenders. — D. of F, Moncreiff—
Skene*
Foreign— Testament. — A native of Scotland, who was domiciled in India, but
part of whose property was, vested in heritable, bonds in Scotland, having exe-
' cuted a will in India, whfch was not effectual to carry the heritable bonds ; and
a question having arisen, whether his heir at law, who claimed the heritable
bonds as heir, was also entitled to claim a share of moveables under the will —
Held, that the construction of the wifl as to whether it expressed as intention to
carry the Scotch heritage, and the legal consequence of that construction, must
be determined by the law of England.
Dec. 5. 1826. The late Colonel Charles Trotter, a native of Scotland, and
JBd Division. one °^ a fcroity °f 8*x children, having gone to India in the ser-
Lord Pitmilly. vice of the Company, and realized some fortune there, wrote,
MTC. fa 1809, to his brother William (who resided in Edinburgh,) in
the following terms : — ' I will probably send from time to time
* money home, and I have at this present moment written to Bom-
' bay for bills of exchange for 3000 rs., which I will make pay-
' able to you. This sum, or any other I may send from time to
' time, you can lodge in the Bank of Scotland, or in other safe
' security, until my arrival, if it please God I ever should return
6 home ; otherwise it will do to divide amongst you all, agreeably
' to our dear father's wise and just system of disposing of his for-
tune.*1 Colonel Trotter accordingly at different times remitted
further sums, which he directed to be lodged in the Bank, ' and
in no other place,' frequently repeating his resolution, that if he
did not return home, it should be divided amongst all the family,
nstead of lodging the money in the Bank, Mr. William Trotter
deemed it more advisable to lay it out on heritable security ; and
he accordingly invested1 what had been remitted otr three bonds,
two of which were heritable, and the other personal, but seclud-
ing executors. At this period Colonel Trotter's heir of conquest
was his immediate eider brother, General Thomas Trotter. His
heir of line, who would as such have succeeded to the bond
secluding executors, was his immediate younger brother, the
pursuer, Young Trotter, from whom a declaration was taken,
at the recommendation of the family agents, and addressed to
them, setting forth that he had been informed that the money-
appointed by Cojpnel Trotter to be lodged in the Bank had been
lent out on bonds, whereby it would ' probably fall to be distri-
. * buted differently from hte intentions,9 and proceeding,—* Now,
c as 1 know my brother's intention was, that his estate should, in
' the event of his death, be distributed on the same principle with
c
COURT OF SESSION, T»
« that of our father's, or equally amongst his brothers and sisters,
' I hereby, for ray interest, engage to co-operate in effecting such
' a distribution, should my brother Charles die without making
* any other valid arrangement and settlement of his affairs.' This
declaration remained in the hands of the family agents; but
General Trotter, the heir of conquest, did not grant any similar
declaration on his part, and Colonel Trotter was himself subse-
quently informed of the manner hi which his money had been in-
vested, although it did not appear that he was made acquainted
with tba change which it would effect in the legal order of his sue-
Cokmel Trotter not only did not express any dissatisfaction at
tfcna deviation from his directions, but in 1815, when k became
necessary to discharge one of the bonds, he executed a power of
attorney, which had been prepared in this country, and which ex-
pressly mentioned the several bonds, whereby he empowered Mr.
William Trotter to uplift the sums in thete bonds, * and to rein-
' vest aad re-employ the sums so received, or any other funds
* that I may hereafter commit to his charge, dn such similar good
4 heritable security, or personal security, as he may approve of.'
Under authority of this power of attorney, the money lent on
the bond secluding executors and one of the heritable bonds were
uplifted, aad* sum of nearly similar' amount was lent on heritable
bonds to the pursuer Young Trotter, and in this state the funds
remained at Colonel Trotter's death in June 1819* A few days
prior to this event, which happened at a remote station in India,
Colonel Trotter executed a will, whereby, after narrating that
he considered k his duty to make a settlement of all the estate
and elects which might belong to him at his death, he appointed
his brothers William and Young to be his executors in Great
Britain, and certain persons to be his executors in India, under
directions, that after payment of certain legacies, they should re*.
ink the residue to hia executors c in Europe,' who were instructed
by die deed c to divide the remainder of my estate, as they receive
* it fism Iadia, and the whole of my property in Europe, into
'six equal shares,' to be paid to each of his brothers and sisters,
and the husband of one of the latter.
In the March preceding General Thomas Trotter had died, so
that Young Trotter, as the immediate younger brother of the
deceased, had thus become his sole heir in heritage ; and having
ssrved heir accordingly, he* as such, claimed the heritable bonds,
and likewise an equal share of the residue of Colonel Trotter's
moveable estate under the will. This was opposed on the part of*
the legatees,, on the ground, that it being the intention of the tea.
80 CASES DECIDED IN THE
tator, as expressed in his will, (though not in technical terms suf-
ficient to carry that intention into effect,) that his whole property,
heritable and moveable, should be divided equally among the le-
gatees, the heir could not both take under the will his share of
personal estate, and the heritable bonds as heir at law, — thus ap-
probating and reprobating the latter will.
. To have his rights determined, Toung Trotter raised an action
against William Trotter, concluding for exhibition of the titles,
&c. connected with the real debts of the deceased, and that, when
produced, they should be ordained c to be delivered up to the
* pursuer as his own proper writs and evidents, and that without
' the forfeiture of any part of the legacy left to him by the afore-
' said latter will and testament of the said Charles Trotter, and
« without being obliged to collate the heritage, or any part of it,
' with the personal estate/ A multiplepoinding was also raised
in name of the executors in this country, in which Young Trotter
claimed his equal share of the personal estate under the will, and
also the heritable bonds above mentioned ; while the other lega-
tees claimed their equal shares of the whole property of the de-
ceased, including these bonds ; or (if the heir refused to collate)
of the whole personal estate, excluding him from any share.
It was admitted on both sides that the settlement was not effec-
tual to carry the heritable bonds, and that the point, whether the
heir could take a share of moveables under the will, without com-
plying with the intention of the testator as to heritage, depended
on the English law of election, which, however, was the same
with our rule of approbate and reprobate ; but the question came
to be, Whether the testator had expressed air intention to convey
the heritage, and whether, as to this, the will should be construed
according to the law of England, or that of Scotland ?
• The processes above mentioned having been conjoined, the
Lord Ordinary assoilzied from the declaratory conclusions of the
action of exhibition and delivery, and in the multiplepoinding
preferred the legatees to the fund in medio, in terms of their claim*
Against this interlocutor Young Trotter reclaimed, and the
Court, before answer, appointed a Case to be laid before En*
glish counsel (a Chancery and a Common lawyer) for their opinion
on the following queries :—
1. Whether the will would be held sufficient to pass real pro-
perty by the law of England ?
2. If it would not be held sufficient for that purpose, what are
the particular grounds on which it would be considered in En-
gland insufficient for that purpose ?
„ 8. If the will be not sufficient to pass real property, does it so
COUBT OF SESSION. 81
express the testator's intention that it would put the heir to his
election in any competent Court in England, whether of law or
equity, if he had claimed the English real property, as well as
his share of the personal estate under the will ?
4. If the words of the will are so defective in form and in mean-
ing, according to the construction of such words by the law of
Scotland, that they do not express it to be the meaning of the
testator to pass heritable rights in Scotland, would the heir be
put to his election in any competent Court, whether of law or
equity, in England, were the question to arise there ?
5. Taking into consideration the relative circumstances under
which the heritable bonds were severally granted, with reference
both to the time of Cblonel Trotter's death, and to the authority
under which they were heritably invested by his attorney, does
the same general principle apply equally to all of them ?
6. What would be the determination of any Court of Law or
Equity in England in regard to heritable or real prpperty vested
by the attorney under circumstances which left Colonel Trotter
in ignorance that the money was so vested at the time he made
his will, and when he died ? Would the heir, with regard to such
real subjects, be put to his election ?
- 7. On the other hand, what effect would be given to the cir-
cumstance, that an heritable or real security, which Colonel Trot-
ter had previously approved of, and which exceeded in amount
the new investments alluded to in the preceding query, had been
uplifted by his attorney under circumstances which left Colonel
Trotter in ignorance that the money had been so uplifted at the
time be made his will, and when he died ? Would that circum-
stance affect the heir's obligation to elect as to the posterior real
investments alluded to in the preceding query ?
8. Whether, on the supposition of the question having arisen
for trial in England, the heir would have been put to his election,
if he had claimed money secured by heritable bonds in Scotland,
as well as his share of the personal estate under the will ?
To these queries the following answers were returned :—
1. We are of opinion that the will would not be held sufficient
by the law of England to pass real, that is, freehold property.
£. Because it is not attested by three witnesses in the manner
required by the Statute of Frauds.
3. We are also of opinion that the will does not so express the
testator's intention as to the freehold property, as that it would
put the heir to his election in a Court of Equity in England, if
the heir had claimed the English freehold property, as well as his
share of the personal estate under the will.
vol. v. f
88 CASES DECIDED IN THE
, 4. Upon thfe supposition which is put in the fourth question ,
we think lhat the heir would not be put to his election in any
competent Court in England, either of Law or Equity* were the
question to arise there.
5. We are of opinion that the same general principle applies
equally to all the bonds.
6. We are of opinion that though Colonel Trotter might be
in ignorance that his money was vested in heritable property at
the times when he made his will and when he died ; yet, as the
power of attorney authorized an investment in heritable security,
the heir would not, with regard to such real subjects, be put to
his ejection ; but that, notwithstanding Colonel Trotter's ignorance
of the actual mode of investments, the heritable or freehold pro-
perty would, in any Court of Law or Equity, be deemed such as
it actually was at the death of the Colonel.
7. We are of opinion that if an heritable or real security, which
Colonel Trotter had previously approved of, and which exceeded
in amount the new investment alluded to, had been uplifted by
his attorney under circumstances which left Colonel Trotter in
ignorance that the money had been so uplifted at the times when
he made his will and when he died, that circumstance would not
affect the heir's obligation to elect as to any posterior real invest-
ments alluded to in the sixth query. But having regard to the
terms of the power of attorney, whether the Colonel's property
was money in the hands of his attorney, or heritable security, it
must, as between his heir and executor, be taken to be such as it
in fact was at the time of the Colonel's death.
8. Considering heritable bonds in Scotland as real estate, to
which the heir at law is entitled, unless they are conveyed away
by his ancestor with due solemnities, we think the heir at law
would be entitled in this case to claim them without being' put
to his election, if the question had arisen in a Court of Justice in
England.
On receiving this opinion, the Court altered the Lord Ordi-
nary's interlocutor, and found that the pursuer *is entitled to
' the legacy left to him by the will out of the personal estate,
' without being obliged to collate any part of the sums secured
' by heritable bonds, to which he is entitled to succeed as heir;'
and therefore in the multiplepoinding preferred him in terms of
his claim, and in the action of exhibition and delivery decerned
in terms of the libel. The legatees having reclaimed, the
Court ordered Cases, in which it was contended by them, Thai
there being no dispute that by the law of England, as by
that of Scotland, an heir could not; take benefit by a will while
COURT OP SESSION. 83
he contravened the intention of the testator expressed in it, though
not technically carried into effect, the only point to be determined
was one of fact, viz. Whether the testator did intend to include
in the settlement of his affairs his Scotch heritable bonds ? —
That this depended not on any technical construction of the
terms used, which could only be properly resorted to in con*
sideling whether the terms were legally sufficient to carry the
intention into effect, but on the common sense and colloquial
meaning of the language employed, which, in the present
case, showed a clear intention on the part of the testator
of including under his settlement all his real property, where*
ever^ situated; so that there was no necessity for having re-
course to the opinion of English lawyers, which could be no
guide on such a question, the more especially as the law of En-
gland had particular technical rules of construing intention, ac-
cording as the property, supposed to be had in view, was freehold
or copyhold, and as there was no species of property known in
England corresponding to our heritable bonds. It was further
argued, that if technical construction was to be resorted to at all,
it ought to be that of the law of the country where the real pro-
perty was situated, regarding which the question arose; and
several authorities to this effect were appealed to, particularly an
unreported case of Martin v. Martin, Stone and Foote, very simi-
lar to the present, in which this Court, and afterwards the House
of Peers, affirmed a judgment of the Lord Ordinary, whereby,
in regard to certain adjudications claimed by an heir who had
taken benefit by an English will conveying all the testator's
* real and personal estate whatever,9 his Lordship found, ' that
' the words of the will are sufficiently broad to carry the adjudi-
* cations in question ; and although that will does not contain
* words sufficient to convey feudal property by the law of Scot-
' land, and that it is not authenticated in terms of the statute
€ 1681, yet in respect Thomas Martin, the pursuer, has taken
' benefit under the will, finds that he is not entitled to appro*
' bate and reprobate the same deed.1
On the other hand, it was pleaded for the heir, That although,
in determining the effect of terms used in a will in relation to
real property, as to whether they were legally sufficient to carry
such property, it was necessary to construe them by the law of the
country where the property lay, every country having peculiar
technical rules regarding the transmission of real estate ; yet, in
ascertaining the intention of a party, as expressed in his will, the
true rule of construction was according to the law of the country
of ha domicile, the legal language of which he was held to
f 8
64 CASES DECIDED IN THE
speak, and that such construction was therefore matter of law,
which, being here a question of foreign law, could only be determin-
ed by the opinion of foreign lawyers ; and the opinion obtained in
reference to this case being clear and explicit, that there was no
such inlention expressed in the will to convey the heritable bonds
as would put the heir to his election in England, there was no
room for any discussion in this Court as to what was the real in-
tention of the testator. In support of this plea, reference was par-
ticularly made to the case of Robertson v. Robertson in 1816;
and in regard to the case of Martin it was observed, that the
right to the adjudications there in question had not been feudal-
ized in the person of the testator, and were consequently per-
sonal property.
The Court, by a majority, adhered to their former interlocutor.
Lord Justice-Clerk*— This is a case of much importance, and it
has been very well argued in the Cases. I remain, however, of
opinion that the course we adopted of requiring the opinion of
English lawyers is that which we are bound to take in deciding
cases like this, having reference to the meaning of English deeds.
Our former erroneous course of judging of English deeds without
such assistance was corrected by the reversal of the decisions of
the Court in the cases of Dundas, of Wilson, and of Douglas ;
shortly after which the course was adopted which has properly been
followed here. The opinions which have been obtained jn this case
are quite decisive, and must be taken as matter of met ; though it is
satisfactory to observe, that they are almost in the same terms with
those obtained in the case of Robertson. As to the case of Martin,
so particularly referred to by the legatees, I have looked into the
notes of Lord Meadowbank, and I see that President Campbell held
that the adjudications there were moveable property ; and it is clear
that they were so. This, therefore, forms a remarkable specialty in
that case, which cannot be received as a precedent.
Lord Pjtmilly. — I cannot deny that I have felt a strong disposition
to return to my original interlocutor ; but I have found it impossible
to do so. This case must hinge entirely on the question, whether
or not we are to be guided by English law, which is strictly
matter of fact in this Court. Had it been urged in the Outer
House, I should have taken the course since adopted of requiring the
opinion of English lawyers ; and 1 am now satisfied that it is neces-
sary to decide the case by their opinion. Young Trotter takes the
heritable bonds as heir at law, not under the will, but because they
are not carried by the will ; and that is a point of Scotch law as to
what is sufficient to carry Scotch heritage, which we must deter-
. mine. But he also claims under the English will -a share of the
moveables ; and the succession under it must be regulated by the lex
COURT OF SESSION. 85
domicilii. It therefore becomes a question of English law, whether
he is to take under the will, subject to election or not ; and if he
is cut out from a share of the moveables, it must be in virtue of the
English rule of election, and not of our rule of approbate and repro-
bate. We cannot put him to his election till it be determined that
the testator has intended to put him to his election ; and it is no
answer to say that the testator's intention is a question of fact, for
it depends on the legal construction of the will, and is thus a very
nice question of Fngifrh law, which this Court cannot determine of
themselves, but it must have recourse to the opinions of English
lawyers ; and those received here leave no room to doubt of the re-
sult.
Lord Alloway— The late Colonel Trotter, though born in Scot-
land, was certainly a domiciled Englishman ; and so far, therefore,
as his moveable succession is concerned, it must be regulated by the
law of England. The succession to the heritage, on the other hand,
mils to be ruled by the lex rei site. In every country there is some
equitable rule to attain tbe ends of justice, when a settlement is not
so expressed as to carry heritage according to the law of the coun-
try where it is situated, although it may have been the intention
of the testator to do so. This equitable rule is carried into effect
in Scotland by the doctrine of approbate and reprobate, and in
England by the law of election, which are exactly the same in prin-
ciple, both depending on this — what was the will of the testator. I
perfectly agree with the opinion of the English counsel consulted
here, that the heir is entitled to take under the settlement, and also
as heir at law, if it was not tbe intention of the testator to dispose
of the heritable property by that settlement ; and so far I think it
right to follow the English law, which however agrees with our own.
But when we come to ascertain what was the intention of the de-
ceased, I conceive that we are entitled to throw out of view the tech-
nicalities of the English law, which seem in a great measure to de-
pend on whether the property be freehold and copyhold, and whe-
ther there be two or three witnesses, and to judge of the intention
for ourselves. The will here is a military testament, and no tech-
nical language is used in it. I know it cannot carry the real estate ;
but the intention to do so is clear. All I ask is, to construe the will
according to tbe fair colloquial meaning of the language ; and in this
view the intention to settle his whole estate in Scotland, as well as
elsewhere, is evident ; and still more so, when his previous corre-
spondence, and the declaration^ the heirs, are taken into consideration.
Such being his intention, we are warranted, following out tbe En-
glish rule of election, to return to the Lord Ordinary a interlocutor.
Lord Glenlbe. — This is not a question as to heritable succession,
but only as to what effect Young Trotter's taking the heritage is to
have on the moveable succession under the will. Now, suppose that
there bad been no settlement at all, whether the heir had a claim to
86 CASES DECIDED IN THE
a share of the moveable* without collating would have ben a ques-
tion of English law solely. In the sane way as to testamentary
succession, when the question is, in what respect the moveable suc-
cession is affected by a particular act, we must go to the law of the
domicile. It is said mat we must attend chiefly to intention ; and
I can conceive cases where the expression of will is so explicit, that
it would scarcely be necessary .to apply to English lawyers ; but
whenever we come to infer intantaan, we- must have recoume to
English law. If it were not for extrinsic etrcumstanoas, I am not
clear that there is any such necessary presumption of an intention to
convey the bonds as is taken for granted by the legatees. Of all
cases, therefore, this is the most fit to go to the law of England; and
I am not sure hut that it is even more favourable for the defenders
to have recourse to that law than to our own. We must judge,
however, by the law of England, whether the heir would have been
put to his election there ; and as we see by the opinions that he
would not, we cannot enforce our doctrine of approbate and repro-
bate.
Pursuer's Authorities.— Voet lib. ]. t. 1. § 19, lib. 23. t. 2. f 85, and lib. 28. t. 5.
§ 16 ; Dundas, Feb. 25. 1783, (15585); Henderson, Jan. 31. 1797, (15444), as
reversed in H. of L. May 29. 1802 ; Bingham, Feb. 7. 1794, as re-
versed in H. of L. March 18. 1796 ; Wightman, June 14. 1809, (F. C.) ; Ro-
bertson, Feb. 16. 1816, (F. ۥ); Hay Balfour, March 11. 1793, (F. C.) as re-
versed in H. of L.
Defenders' Authorities.--Voet. lib. 23. t. 2. § 85, and lib. 28. t. 5. § 16-144; Lamb,
March 11. 1624, (4812); Henderson's Children, Dec. 9. 1623, (4481); Dictum
of Sir W. Grant in Brodie v. Barry, (2. Vesey and Beumes, 127) ; Ross, Jan.
20. 1797, <F. C); Robertsons, May 25. 1812, (F. C); Gibson, June 20. 1786,
(620) ; Martin, March 4. 1794, affirmed in H. of L. (not rep.)
Cranstoun and Andebson, W. S— Geo. Veitch, W. S.— Agents.
No. 58. C. Campbell, Pursuer. — D. qfF. Moncreiff—Cuninghame.
A. Anderson, Defender.— Jeffrey— Matheson.
Mandatory—Factor.— Held that a factor or mandatory is entitled to act until be
receives authentic information of the death of his constituent.
Dec. 7. 1826. The late Robert Gordon was proprietor of Draikies near In-
lsr Division. verness> ^ also of estates in the West Indies. Having been
Lord Medwyn. obliged to go thither, he granted a factory for the management
D. of Draikies in favour of the defender, with power, inter alia, * to
* borrow such sum or sums of money as he may think proper on
« my account, to the extent of -£5000 sterling; and, for the pur-
€ poses foresaid, to grant, subscribe, and deliver bonds, obliga-
* tions, and other writs necessary as factor foresaid, and therein
' to bind and oblige me, as his constituent, to grant heritable se-
COURT OF 6ES6ION. 87
c curity Ibr such turns of money as he may 90 borrow upon my
' return to Great Britain ; as also, for me and in my name, to
' grant, subscribe, <and deliver all foreign or inland bills which
< may happen to be drawn on me during my absence, in so far
* as the same shall appear to be justly due by me ; and likewise
* to draw bills or other drafts in my name, and on my account, on
* such commercial houses as I have, or hereafter may happen to
* hare, dealings with.9 Mr. Gordon was in the practice of con-
signing his West Indian produce to Campbells, Eraser, and Com-
pany, merchants in Glasgow, of which firm the pursuer was now
the sole representative ; and the defender was authorized to draw
upon them when necessary. On the 28th of October 1809, the
defender wrote to the pursuer, stating that Mr. Gordon, * in his
* last to me of the 24th July, advises his draft on your house for
* £\509 and his intention of avoiding to v^lue further on you
' until he can ship produce to your address, which I trust he will
' be able to accomplish, as bis purposes here would require an
* accommodation of -£500 on the 11th proximo, being our Mar-
* timnas term. I Have advised him of my intention of soliciting
' your house to this extent ; and if you permit me to draw on
* you at three months for the same, be so good as acquaint him
* therewith per the Harmony, that he may have the earliest
4 knowledge of this addition to his engagements with you, and
' provide accordingly.' In answer, the pursuer, on the 4th of
November, wrote to the defender, that * your draft on Campbells,
* Fraser, and Company, will meet honour to the extent you men-
* tion ; and should remittances not be received, and that they re-
* quire it, you can reimburse them in some shape until the crop
* comes round/ In consequence of this authority, the defender
drew a bill upon Campbells, Fraser, and Company for £S009
payable three months after date to John Fraser, agent at Inver-
ness for the Bank of Scotland. This bill was subscribed thus,
* Per procuration of Robert Gordon, Alexander Anderson f and
he immediately intimated to Campbells, Fraser, and Company that
he had drawn the bill, subscribing his letter in the same manner.
At the same time he wrote to the pursuer, in his own name, this
letter i— * Agreeably to your permission, I have this day drawn
' on your house, as per prefixed letter of advice, for <£500 at three
' months, to complete Mr. Gordon's arrangements at this term ;
' and* by the time it falls due, I trust you will be in possession
* of produce to meet it, ox that it can be otherwise provided for
4 should you find it necessary.9
The proceeds of this bill were applied by him to the use of the
estate of Draikies ; and on the 22d of the same month he Wrote
88 CASES DECIDED IN THE
to the pursuer, that « I have just received a letter from Mr, Louis
' Cameron of Berbice, dated 27th August, communicating the
' death of our worthy friepd Mr. Gordon on the 24th of the
' same month, — an event as distressing as it was unexpected.
' About a month ago, a report of this circumstance was circulated
c here; but as it came from no authority, and similar stories hav-
' ing been handed about on former occasions, his friends expe-
' rienced no uneasiness, particularly as the Hawk, that sailed
' from Demerara on the 14th September, and arrived in the
' Clyde on the 28th October, brought no such intelligence.1
Campbells, Fraser, and Company, in consequence of this event,
and of being under large advances for Mr. Gordon, refused to
accept the bill; but an action, having been afterwards raised
against them, founding upon it and the relative letter, the Court
decerned against them for the amount, and in consequence the
bill was paid and delivered.* In the mean while the West In-
dian produce continued to be consigned to that company, and in
consequence they were enabled to get their debt paid off; but
they did not include the amount of the bill as .a charge against
the consignments, as they conceived that they were not liable
for it.
After decree had been pronounced, and the bill delivered up,
the pursuer, as representing Campbells, Fraser, and Company,
brought an action against the defender, in which he concluded
for reduction of the bill, and at all events for repetition of the
amount.
In support of this he contended,
1. That as Mr. Gordon had died on the 24th of August, and
the bill had been drawn, per procuration of him, on the 11th of
November, there, was no existing mandate in favour of the de-
fender, and therefore he had no legitimate authority to draw the
bill.
2. That as he had been previously aware that there had been
reports of the death of Mr. Gordon, it was incumbent on him,
before drawing the bill, to have made the pursuer aware of that
fact ; and at all events he was not in bona fide to act upon his fac-
tory, to the effect of drawing such a bill, so long as such a ru-
mour remained uncontradicted ; and,
3. That frpm the nature of the letters which he wrote indivi-
dually at the time when the bill was drawn, he came under an
obligation to provide for it, and thereby to relieve the pursuer.
9 See ante, Vol. II. No. 330.
COURT OF SESSION. . 89
On the other hand, it was contended in defence,
1. That as no authentic information had been communicated
to the defender of the death of Mr. Gordon at the time when the
bill was drawn, his factory remained in full force until that event
was made known to him.
S. That an action of reduction of a document in the hands of
the pursuer himself was not competent ; and,
3. That as the defender never had any communication with
the pursuer, except in the character of factor for Mr. Gordon,
and as the bill had been drawn in behalf of, and the proceeds
applied to the use of that gentleman, no personal liability could
attach to him.
The Lord Ordinary assoilzied the defender; and the Court,
after hearing the counsel for the pursuer, and declining to hear
the defender's counsel, adhered.
The Loan Ordin a*y observed in a note : —
The form of redaction adopted here does not seem accurately calcu-
lated for the grounds of the action. The bill sought to be reduced
is not in the defender's hands, but in the pursuers ; nor does he
found any action upon it against the pursuer ; and if it be null, this
defence ought to have been pleaded in the action where the pursuer
was found liable to pay the amount to the holder of it. Moreover,
after the reason of reduction founded on the clause of style, the two
next may afford grounds for relief, but not for reduction of the bill,
which is the only writ called for. The fourth reason is the only
proper ground of redaction that the bill is null, as having been drawn
subsequent to the death of the mandant. But as this event was
not known at the time in this country, the defender's having con-
tinued to act on bis factory was legal, and therefore the bill cannot
be set aside on that ground.
If it be competent under this summons to consider whether the pur-
sner has any claim of relief against the defender, it appears to the
Lord Ordinary to be quite clear that the defender neither meant
to undertake any personal responsibility, nor did the pursuer under-
stand that he did. The pursuer was the chief partner in the house
c£ Campbells, Fraser, and Company, who were the consignees of the
late Mr. Gordon of Draikies for his West India estates. The de-
fender, as factor on the estate of Draikies, was authorized by the
pursuer to draw upon his house on behalf of Mr. Gordon. He ac-
cordingly asked leave (28th October 1809) to draw for £500 ; and
if this was permitted, he begged the pursuer to write Mr. Gordon,
* that he may have the earliest knowledge of this addition to his
' engagements with you, and provide accordingly/ She pursuer,
on 4th November 1809, says, — * Your draft on Campbells, Fraser,
' and Company, will meet honour to the extent you mention ; and
90 CASES DECIDED IN THE
' should remittances not be received, and that they require it, you
4 can reimburse them in some shape until the crop comes round.'
The defender accordingly drawB the bill under reduction for £500,
' per procuration of Robert Gordon ;' and besides notifying officially
to the house, he notifies also privately to the pursuer, and adds,—-
' By the time it fells due, I trust you will be in possession of pro-
* duce to meet it, or that it can be otherwise provided for, should
' you find it necessary.' Before the bill was presented for accept-
ance, the accounts of the death of Mr. Gordon reached this country,
when the embarrassment of hia affairs became known ; and Campbells,
Fraser, and Company refused to accept the bill, being then, as they
state, in advance about £5000 for Mr. Gordon. The Court, at the
instance of the holder of the bill, found them liable in terms of the
permission to draw in the letter of 4th November 1609, and the*
pursuer has been compelled to pay.
Now it appears that in the whole transaction the defender was acting,
and was known to be acting as the factor of Mr. Gordon, and for
his behoof. The reimbursement was to come from the crop in the
West Indies, all of which was consigned to Campbells and Company ;
and the utmost that the defender was asked to do was, if remit-
tances did not arrive, and if Gordon's agents required it, he, as
Gordon's factor, should reimburse them till the crop came round, —
* that is, provide some temporary accommodation, by discount or other-
wise, if they really required it, till the crop arrived, from which both
parties contemplated that it was ultimately to be paid. In the cor-
respondence subsequently, any thing like a personal responsibility
by the defender is not pleaded, Tbey refused, however, to accept
or to take charge of this bill ; they never, therefore, did or could
call upon the defender to provide for it till the crop came round.
Further, it would appear that they actually received the crop as
consignees ; for it is admitted by them that their debt, stated to
have amounted to £5000, has been paid off; and if, by paying this
bill at the time, they had put themselves into a condition to claim
reimbursement for it, tbey would probably have been successful to
this further extent also. But when they did not do so, it appears
to the Lord Ordinary that they cannot claim relief from ths) defender
personally.
Parmer'* Authorities.— 3. Erek. 3. 41 ; Ayton, March 2. 1679, as reversed in H.
of L. (14573.)
Defender's Authorities.— 3. Ersk. 3. 41 ; Bell, 895, and authorities there.
C. MTDowall, W. S— T. Mackbnzijb, W. S— Agents.
COURT OF SESSION. 91
It. Gordon and Others, Suspenders. — More. No. 59.
J. Romanes, Charger. — Marshall.
Pnetu Stat. 6. Geo. IV. c. 120.— Circumstances under which a party who had
lodged an irregular condescendence, was found not liable in expenses.
In a suspension which was brought under the old forms of Dec. 7. 1899.
process, the Lord Ordinary, after a great deal of litigation, ap- ln j^lYtumt
pointed a revised condescendence to be lodged in terms of the Lord Meadow,
statute 6th Geo. IV. c 100. A condescendence was accordingly bank-
given in, which having been objected to as not in terms of the
statute, the Lord Ordinary, ' in respect the suspenders have
* failed to give in a revised condescendence in terms of the late
* Judicature Act and relative act of sederunt, the paper, No. 88
' of process, termed a revised condescendence, being altogether
' irregular, and no fulfilment of the order, and it being admitted
' by the counsel who signed the same, that it was not prepared
' by him, and that it was so signed by mistake, ordains the same
* to be withdrawn, and appoints the suspenders to give in a new
' revised condescendence, framed strictly in terms of the statute
' and relative act of sederunt, by the first box-day, and the char-
* ger to revise his answers by the second box-day, both in the en-
* suing vacation; and finds the charger entitled to the whole
4 previous expenses of this process.' The suspenders then rev
claimed, when their counsel explained at the bar, that the parties
having been on terms of compromise, the agent in the cause had
brought him the revised condescendence about half an hour be-
fore the period for lodging it expired, requesting him to sign it,
merely to prevent the interlocutor from becoming final, and that
he had done so on condition, that if the compromise was not car-
ried into effect, it should be withdrawn, and a correct one lodged;
and that all the^uspenders complained of, was the award of ex-
penses which bad been pronounced ex proprio niotu of the Lord
Ordinary. The charger having stated that he did not insist for
expenses, the Court recalled the interlocutor to that extent, and
remitted to the Lord Ordinary to proceed accordingly.
W. Wallace, W. S— Tod and Romanes, W. S«— Agents.
92 CASES DECIDED IN THE
No. 60. Anne M'Indoe and Others, Pursuers. — Grecnshield*.
G. Lyon and Others, Defenders. — Jeffrey — Fullerton.
Title to Pursue— Deathbed— Proce**.— A party, by deed of settlement, left heritable
property to his widow, failing whom, to substitutes. The widow, after having been
infeft, executed a conveyance mortis causft to the exclusion of these substitutes,
who brought a reduction of her settlement ex capite lecti, describing themselves
as heirs of provision to the original grantor, but narrating his deed of settlement,
whereby thejr true characters as heirs of provision to the widow appeared.—
Held, — 1.— That so libelling themselves, the summons was inept to support a
conclusion of reduction ex capite lecti ;— 2.— That a supplementary summons
was incompetent ; — and,— 3. — That the objection was one which could not be
waived by the parties having gone to issue without stating it; but right to bring
a new action in the proper character reserved.
Dec. 7. 1826. The late Robert Hunter, by his deed of settlement, conveyed
all his heritable estate to his wife Anne Cumming, ' in case she
Lo d Ft"*?* ' ^^l survive me, and to her disponees whomsoever;*1 and failing
M»K her surviving, or disponing the subjects in the event of her sur-
yivance, one portion was destined to Mary Murray in liferent, and
her children in fee ; and the remainder to the pu rsuer Anne Mlndoe
in liferent, and to her children in fee ; these parties being likewise
mutually substitutes to each other in their respective shares.
Anne Cumming survived her husband, and was infeft in the sub-
jects in question ; and, shortly before her death, she executed a
trust-disposition of the property in favour of Lyon and others.
Of this trust-deed a reduction on thehead of deathbed was brought
in 181Sby Anne Mlndoe and her children, (Mary Murray and her
children having failed,) libelling themselves as ' heirs apparent of
4 the deceased Robert Hunter.9 Their title, as thus set forth,
having been objected to, they were allowed to put #in an amend-
ment of the summons, in which they designed themselves * as heirs
4 apparent of provision of Robert Hunter, conform to the deed
4 of settlement executed by the said Robert Hunter of date the
4 28th of September 1811, whereby he gave, granted, alienated,
4 and disponed, with and under the burdens and declarations
4 therein mentioned, to and in favour of Anne Cumming, his wife,
4 in case she should survive him, and to her disponees whoniso-
4 ever, and fading the said Anne Cumming by decease before
4 him, or failing her disponing or conveying the subjects thereby
4 disponed, in case she did survive him, to the said Mary Murray,
* 4 to the extent therein mentioned, in liferent, for her liferent use
' only, and to her lawful children," &c. ; 4 and to the pursuer, the
4 said Anne M'Indoe, to the extent therein mentioned, in liferent,
4 for her liferent use only, and to the lawful issue procreated or
" COURT OP SESSION. 9S
c to be procreated of the said pursuers, equally among them, and
4 to the survivors and survivor of them, and to the lawful issue
* (equally among such issue) of the deceasers or deceaser of them,
* in fee.*
Great avizandum was made, without any further objections to
the title ; and after a proof had been taken, and considerable pro-
cedure had thereon, the Lord Ordinary sustained the reasons of
reduction, and reduced in terms of the libel.
On the case having been brought before the Court by petition,
doubts were started by the Bench as to the pursuers1 title ; and
minutes were ordered on the question, * whether the pursuers pos-
* sess the proper character of heirs entitled to pursue reduction
' on the head of deathbed.1 By the defenders it was contended,
That the pursuers possessed no title to pursue this reduction, and
that at all events the title set forth in their amended summons, as
heirs of provision to Robert Hunter, gave them no right to pursue
a reduction ex capite lecti of a deed not executed by him, but by
Anne Gumming. On the other hand, the pursuers contended,
That by engrossing in their summons the deed which formed their
title, and which set forth their true character as heirs of provi-
sion to Anne Cumming, they had truly libelled a sufficient title
to insist in this action, although, by an error, their designation
in the summons was not strictly correct ; but they rested their
case chiefly on the ground, that the defenders having gone to
issue on the merits, they could not now object to the title; and they
craved at least to have a supplementary summons newly raised
conjoined with the present process, to the effect of validating the
prior proceedings.
The Court recalled the Lord Ordinary's interlocutor, and found
' that the libel, both as originally laid, and as subsequently
' amended, being at the instance of the respondents as apparent
( heirs, or apparent heirs of provision to Robert Hunter, is an in-
* competent proceeding for challenging, on tbe head of deathbed,
* a deed executed by Anne Cumming ;' and they therefore dis-
missed the action, but found no expenses due,— * reserving to the
* respondents to proceed in any other competent action, and to
4 the petitioners their defences, as accords,1 — and also reserving to
the pursuers their claim to, found in such action on the proof
taken in this process, and to the defenders their objections.
Lord Glenlke- — Tbe ordinary case where an objection to title may
be barred by acquiescence, is when the objection is, that tbe title
libelled is not in the pursuer ; and if such an objection is not pleaded
in proper time, tbe party cannot resort to it afterwards* But here
W CASES DECIDED IN THE
*
ft
the Kbel does not set forth a sufficient title to support the ooneln*
done. It does not bear that the pursuers are heirs aliequi aucces*
suri of Mrs. Camming ; and no consent of parties eould warrant
the Court to give judgment on such a libel. This is similar to a
case reported by Kilkerran of a process of division of. a commonty,
where, after a proof had been led, the whole proceedings were set
aside, in consequence of its appearing that in the summons the pur-
suer was set forth as having only a servitude. The libel being inept,
. no consent can make it competent; and we cannot allow a new
summons as supplementary to one totally inept.
Lords Justice-Clerk and Pitmilly concurred. ,
Loud Alloway.— I concurred in the interlocutor at the former ad-
vising, but I have now come to a different conclusion. It requires
no title to be made up to pursue a reduction on the head of death-
bed ; an interest is all that is necessary ; and accordingly creditors of
an apparent heir hare been allowed to pursue such an action. In
this case the pursuers have a clear interest, as heirs alioqui suc-
ces8uri to Mrs. Cumming ; and though the designation may be,
strictly speaking, erroneous, the terms of the deed by Hunter com-
pletely prevent any mistake, and set forth a sufficient interest to*
support the action.
E. Lockhart, W. S. — Carnegy and Shepherd, W. S. — Agents.
No. 61* Governors of Heriot's Hospital, and the Magistrates of
Edinburgh, Advocators. — Sol-Gen. Hope — V Amy— More.
Dicksons, Brothers, Respondents. — D. qfF. Moncreiff— Alison,
Reparation—Common Setcers.—The proprietors of feuing ground, who had original-
ly formed a common sewer for the use of the houses to be built on the grouficT
felted out by them, having allowed a greater quantity of aewage water to be con-
veyed into the sewer than it could adequately carry o$ held liable in reparation
of damages thereby occasioned.
Dec. 7. 1826. The barony of Broughton, and other lands in the neighbour-
2d Division, kood, originally belonged to Heriot's Hospital, by the Governor?
Lord Macken- of which several parcels (now entirely covered with houses) were
feued out about a century ago for agricultural purposes. Some
of these remained in the hands of private individuals, by whom
they were feued out for building, and now form Broughton*
place* Forth street, Hart street, &c. ; while other parts were ac-
quired by the City of Edinburgh, and particularly the ground
on which York place, greater part of Albany street, and Brough-
ton street, now stand. In 1797, the Magistrates of Edinburgh
entered into an arrangement with Heriot's Hospital for building
Vork place, the feus in which were made to hold directly of the
Hospital, and were feued out with reference? to a plan signed by
zie;
M'K.
COURT OF SESSION. 96
the Lard Provost on the part of the City, and by the Governors
of the Hospital. According to this plan, there was a covered
main drain for carrying off the sewage water, which proceeded
down Broughton road, (the ground, on one side of which still re-
mains the property of the Hospital,) and emptied itself into an
open ditch in ground belonging to the Hospital, and at present
held in lease by the respondents. This main drain, it appeared,
bad been built by the Hospital ; but the individual feuara were
bound to make their communication drains at their own expense.
Some time afterwards the Magistrates feued out Albany street,
and the feuars were allowed to take their sewers into the Brough-
ton road main drain, — the Magistrates, however, paying one-
half of the expense of the communication sewers. In this street
also there were two bouses holding directly of the Hospital, the
sewers of which in like manner communicated with this main
drain, into which also it appears the drains from other adjoining
streets on the property of private individuals holding under the
Hospital were conveyed. In consequence of these increased com-
munications, the main drain (which was originally sufficient for
York place) became incapable of properly carrying off the addi-
tional quantity of sewage ; and accordingly, on occasion of a heavy
rain, the lower end of the drain burst, and the water continued
for some years to run on the surface of Broughton road till it
entered a garden, the property of the Hospital, and let by them
to Dicksons, respondents, by a grating from the surface, in-
stead of being discharged from the mouth of the covered drain
into an open ditch in the garden, as was the ease before the drain
burst. Chi the 4th of June 1889, a remarkably heavy fall of rain
caused such a flood in the drain, that it could not all pass through
the opening above mentioned, and it accordingly flooded the gar-
den, and occasioned considerable damage by the destruction, &c.
of plants. Thereupon Dicksons raised an action before the She-
riff of Edinburgh against Heriot's Hospital and the Magistrates
of Edinburgh, concluding for damages occasioned by their neg-
lect in not having either enlarged the main drain, or prevented
the additional sewage being emptied into it. The Sheriff remitted
to a gardener to estimate the damage, and to Mr. Stevenson, an
engineer, to report on. the state of the drain. The damage was es-
timated at about i?24, and Mr. Stevenson reported that the cause
of it was the ruinous state of the lower end of the drain, which again
had been occasioned by its being allowed to become the channel
of a greater quantity of sewage than its size was fitted for. The
Sheriff then decerned against the Hospital and the Magistrates
for payment of the reported damage, reserving to them their relief
96 CASES DECIDED IN THE
against the individual proprietors, the drains from whose grounds
had been conveyed into the Bcoughton road drain, and against
the feuars on these grounds ; and in advocations at the instance
of the Hospital and the Magistrates, the Lord Ordinary and the
Court remitted simpliciter, with expenses.
The Lord Ordinary observed in a note: — ' It appears to the Lord
* Ordinary that the Hospital and the Town, having feued their pro-
■ perty upon plans connected with this drain, were bound to the
4 neighbouring proprietors, to one another, and to the public, on ac-
* count of the road, to keep the drain, or see it kept, in proper con-
* dition ; and that the respondents, having obtained a lease, had right
' to the benefit of this obligation both against their own landlords,
' the Governors of the Hospital, who must be held to have under-
' taken to fulfil this duty in favour of their own lands so let, and
' against the Town, which was bound to all parties acquiring real
' right in that land. It appears, then, that the respondents, having
' suffered damage from neglect to perform this obligation, must have
' right of reparation against both the advocators.'
The Court concurred with the Lord Ordinary, and were agreed that
although no responsibility lay on the Magistrates or the Hospital
qua superiors merely, yet the drain having been built by the Hospi-
tal, and the Magistrates having acted along with them as proprietors
of it, and both having fcued their lands with reference to it, and
taken benefit by it, they were still bound to improve it and enlarge
it, before allowing communications, so as to adapt it to the additional
sewage brought into it by these communications ; and that they were
not relieved from their responsibility by any stipulations with their
feuars as to making their own drains, whatever relief they might
have from parties who had opened sewers into the drain without
permission.
MacRitchies, Bayley, and Henderson, W. S. — J. Campbell
Jun. W. S.— Agents.
No. 62* J., Watt, Suspender. — Baird. ,
W. Anderson and Son, Chargers. — Neaves.
Dec. 7. 1826. Previous Expenses. — A bill of suspension having been pre-
r sented by Watt of a judgment of the Magistrates of Dundee
Bill-Chamber, pronounced against him in default of his leading a proof, not-
Lord Medwyn. withstanding various prprogations and opportunities allowed him
F» for that purpose, the Lord Ordinary, in remitting to the Magi-
strates to repone him, made it a condition that he should pay
the previous expenses. The Court adhered.
J. Burness, — Ritchie and MiLLKR,~-Agents.
COURT OF SESSION. 97
J. Pbdie, W. S.—Brownlce. 7 . XT _
Mn. Matheson—J. Wood. J Claimttnts in Multiplepoindmg. No. 63.
Proctt* S. Geo. IV. c. 120. — Held that a party is not bound to revise his con-
descendence of a claim in a multiplepoinding, unless be shall deem that necessary,
but that he ought to make appearance to state this at the enrolment for closing
the record ; and that, if he fail to do so, he is liable in expenses before he can
be reponed against an interlocutor dismissing his claim, on the ground that it
had not been revised.
Condescendences of claims in a multiplepoinding, having Dec. 7. 1826.
been given in by Pedie, Mrs. Matheson, and other claimants, an 2d division.
order was pronounced for revising the claims. Pedie did not Ld. Cringietie.
think it necessary to revise his; and not having appeared to F.
state this at an enrolment by Mrs. Matheson for the purpose of
closing the record, the Lord Ordinary, on Mrs. Matheson s mo-
tion, (of which, however, no notice had been given, the notice be-
ing merely to close the record,) dismissed Mr. Pedie's claim, ' in
* respect he has not revised his condescendence and claim in .
' terms of last interlocutor, and does not now appear to support
4 the same.' Pedie gave in a reclaiming note to be reponed ; and
contended, that as the motion had been made by Mrs. Mathe-
son without previous notice, she ought to be subjected in the
expense of this application thereby rendered necessary. But
the Court, while they reponed Pedie against this interlocutor, re-
mitted to the Lord Ordinary to award against him such expenses
as his Lordship should see reasonable.
The Court, while they held that it was not obligatory on Pedie to re-
vise his condescendence of claim, unless be saw cause, were of opi-
nion that be ought to have appeared at the enrolment for closing the
record, to state that he was satisfied with the paper as originally
lodged.
J. Pedie, W. S. Agent,
VOL. I.
98 CASES DECIDED IN THE
No. 64. J. Smith and Others, Pursuers. — Scl-Gcn. Hope — Murray.
Bank of Scotland, Defenders. — Jeffrey — Walker.
Proo/"— //earwy— /f»^u?w.— Held, — 1.— That a witness is admissible to prove a
statement by the defenders1 agent now dead to ther husband of the witness, also
now dead, and by him to the witness ;— and,— 2.«*-That her deposition having
been taken and sealed up, it is incompetent, before determining as to her admissi-
bility, to allow her deposition to be opened, in order to ascertain whether the
agent's statement was an admission on the part of the defenders, or merely a nar-
rative of what he had heard them say*
Dec. 7. 1826. Smith and others were pursuers of a reduction of a bond of
2d Division. cau^on granted by them to the Bank of Scotland for Paterson,
Lord Macken- bank agent at Thurso, on the ground, inter alia, that the Bank,
zie- knowing Paterson to be in bad circumstances, had concealed this
F* from the cautioners at the time of obtaining their subscriptions
to the bond ; and in support of this it was averred, among other
allegations, that the late Mr. Fergusson, writer to the signet, the
law-agent of the Bank, when in the north, shortly after Paterson's
failure, had admitted to the late Lord Caithness that the Direc-
tors of the Bank were as Inuch surprised at the subscriptions
having been obtained, as they would be, if Paris should move to
Edinburgh. A proof of the several allegations on the part of
the pursuers having been allowed, they called Lady Caithness as
a witness to establish that averment. Her Ladyship, on being
examined in initialibus, deponed, that shortly after Mr. Paterson's
failure, Mr. Fergusson was at Berogill Castle, * and that a con-
4 versation took place between the late Earl, the deponent's hus-
* band, and Mr. Fergusson, in the dining-room of the castle.
c Interrogated whether she was present when the said conversa-
' tion took place ? depones that she cannot say whether she was
' present; but, if she was not, she must have been informed of it
( from her late husband.1 An objection having been taken to
the competency of her being examined as to the nature of the
conversation, the commissioner took the deposition, sealed it up,
and reported the objection.
For die defenders it was pleaded, That as the witness could
not state that she was present at the conversation, it must be as-
sumed that she was absent ; that her testimony, therefore, was in-
competent as hearsay at third hand, she being asked to depone as
to what she had heard her husband say as to what Fergusson had
told him regarding a statement made to Fergusson by the Directors
or a Director of the Bank ; and they proposed to open the deposit
- COUHT OF SESSION. 99
tion, to show that this really was the nature of the evidence £iven
bj Lady Caithness.
On the other hand, it was pleaded for the pursuers, That it was
not, in point of fact, clear that Lady Caithness had not been
present at the conversation ; but supposing that she had not, that
it was the rule of law that the best evidence which could be had
was to be received; and as both Lord Caithness and Fergusson
were dead, Lady Caithness' testimony was the best evidence now
to be had ; but, besides, that her evidence was in truth only hear-
say at first hand, as the fact to be proved was the admission to
Lord Caithness, (which had been allowed to be proved as a re-
levant circumstance of evidence,) and which she had received di-
rectly from his Lordship ; and with regard to the proposal to open
the deposition, it was objected as utterly incompetent before the
admissibility of the witness was decided, die being to be considered
as if in the witness-box before giving her testimony. The Lord
Ordinary repelled the objection, and ordained the seals to be
opened ; and the Court adhered, reserving all objections to the
effect of the deposition.
Loan Josticb-Clebk.— We cannot certainly allow the deposition
to be opened, in order to determine the admissibility of the witness ;
but if the statement alleged to have been made by the bank agent
in his official capacity is a relevant circumstance of evidence, we
cannot reject this witness. A* to the abstract question, whether hear-
say at second hand is to be rejected, I am not prepared to decide it;
but I can conceive a case in the Criminal Court where it would be
absolutely necessary to receive such evidence, as a murdered man
having stated who was the murderer to a party since dead. On the
nice of the examination in iriitialibua, however, I am not satisfied
that the witness was not present at the conversation. A great deal
more should have been asked at her, and I cannot take it for granted
that she was absent ; but even if she was, considering the nature of
the averments which have been allowed to go to proof, I cannot
alter the interlocutor of the Lord Ordinary.
Loan Gjleklbe* — We can know nothing as to whether the evidence
is good or bad, till we see it.
Lord Pitmillt— In the Jury Court we would look at the deposition
before decking whether it waa to go to a Jury ; but in this Court,
from the functions of the Judge and the Jury being combined, we can-
not follow a similar course. The question here is, whether the depo-
sition is to be opened ; and I concur in the Lord Ordinary's interlo-
cutor so far, but would reserve the admissibility as well as the effect
of the evidence. The Bank presents a case which would render the
evidence inadmissible. The pursuers, on the other hand, state a case
which would entitle it to be received. The Bank says that Fergusson
o2
100
CASES DECIDED IN THE
No. 65.
t>ec. 8. 1826.
Vas reporting to Lord Caithness what was stated by the Directors to
him, which would be hearsay of hearsay on the part of Lady Caith-
ness ; while the pursuers say that Fergusson was making an admission
on the part of the Bank, in which case it would not have been hearsay
on the part of Lord Caithness, and consequently is only the common
case of hearsay on the part of her Ladyship. It is difficulty there-
fore, to judge till we know more about it. The Lord Ordinary is
right in allowing the seals to be opened ; but I cannot concur in re-
pelling the objection, which would preclude the future consideration
of inadmissibility. I would therefore recall that part of the interlocu-
tor, and allow the seals to be opened up before answer ; and I think
that greater pains should be taken to inquire further from Lady
Caithness as to whether she was actually present or not.
Lord Alloway.— I doubt whether we can concur in the suggestion of
allowing the deposition to be opened, to determine whether the wit-
ness be admissible or not. We must suppose her at the bar, and
in that case we could not first examine her, and then determine her
admissibility. I entertain no doubt, however, that hearsay evidence
is admissible, even at second hand, when the parties are dead. I
can see no principle on which to reject it. But whether the evi-
dence here is hearsay at first or at second hand, depends on what
Fergusson did ; for if, as law-agent of the Bank, be made the admis-
sion averred, then that is a matter of fact, as to which Lady Caith-
ness' testimony is hearsay only in the first degree ; and taking it even
as the Bank states it, I cannot refuse to admit her.
Lord Glbklee*— - There is really not much difference between Lord
Pitmilly and us. The admissibility of the witness and of the evi-
dence are two separate questions, and I understand the latter to be
reserved.
Thomson and Fxrguson, W. S— H. Davidson, W. &— Agents.
W. Glennie, Pursuer.
MThail, Defender.— %/. W. Dickson]
The Lord Ordinary, after advising a proof, having pronounced
Lord^ldhT judgment against the defender, and found him liable in expenses,
the Court adhered. *
D.
T. Ferguson, W. S— D. Clyne,— Agents.
• The Court have on several occasions complained that proofs have not been
lettered on the margin, and have announced that they will fine the agent failing to
do so in future.
COURT OF SESSION. 101
R Stein and Others, Pursuers.-— /T. Bruce. ^ -,,
Misses Stein, Defenders.— -Jeffrey— A. Wood.
WkcmUj Pmoer of Divteen.— Circumatanoeg under which it was held that a power
of dividing a sum bequeathed by a deed of settlement had not been validly exe-
cuted, and that in terms thereof it belonged to the legatees equally.
By a deed of settlement of the late Robert Stein of Blackball Dec. 8. 1826.
in favour of his daughters, the defenders, he bequeathed to the ,_"T —
pursuers, ' Robert, Prudence, and Euphemia Stem, the three Lord Eldin.
children of my said son David, now deceased, and the survivors D.
or survivor of them, at the term of payment after mentioned,
the sum of £500 sterling, the said sum to be payable upon the
youngest of them surviving attaining majority, with interest
from the term of Whitsunday or Martinmas preceding my
death ; to be paid the said interest half yearly to my said
grandchildren, till the said principal sum shall fall due ; and
which sum of £500 provided to my said grandchildren, and in-
terest to fall due thereon, shall be paid and be divided amongst
them, and the survivors of them, at the terms of payment afore-
said respectively, in such proportions as a majority of my said
daughters surviving at the said term of payment, or my last
surviving daughter in the event of one of them only surviving
at said term of payment, shall direct by a writing under their
or her hand ; and failing such division of the said principal sum
or interest by my said daughters, or a majority of them, sur-
viving as aforesaid, or last survivor of them as aforesaid, then
the same shall fall and belong and be paid to my grandchildren,
and the survivors of them, equally, share and share alike ; and
in the event of one only of my said grandchildren surviving the
said terms of payment, the said sum of £5009 and interest
thereon, shall belong and be payable to him or her wholly.1 He
died early in 1817, and the youngest of these children arrived at
majority in October 1824, at which period no division was made
in terms of the deed of settlement
During the greater period of their minority, the pursuers re-
sided with the defenders ; and it was alleged by the latter that no
remuneration had been paid to them on that account, and that
they had advanced several sums of money for clothing and edu-
cating them.
On the other hand it was stated, that the defenders had avail-
ed themselves of the pursuers1 services in a menial capacity ; and
it was denied that any expense, as alleged, had been incurred*
On the 6th of May 1895, and after the present action had been
108 CASES DECIDED IN THE
threatened, the defenders executed a deed of division, whereby
they declared ' that the said Robert Stein's share or proportion
< thereof shall be i?400 of principal, with interest corresponding
' thereto ; that the said Prudence Stein1s share or proportion
' thereof shall be £50 of principal, with interest corresponding
' thereto ; and that the said Euphemia Stein's share or propor-
* tion thereof shall be £BO of principal, with interest correspond*
* ing thereto.9 The execution of this deed was not intimated till
after this action had been raised, and in the mean while the de-
fenders bad advanced a considerable sum of money to Robert,
with a view to establish him in business. In this action the pur-
suers concluded that the defenders should be ordained to make
payment to them of the £500 in equal shares, with interest from
Martinmas 1816 ; but, before any procedure took place, Robert
and Prudence withdrew, and the action was insisted in by Euphe-
mia Stein and her husband John Maughan.
In defence it was pleaded, « <
1. That as the defenders had been empowered by the deed of
settlement to make a division of the fund, and as they had done-
so, it must receive effect ; and,
8. That they were entitled to retention of the sum in their
hands, in order to compensate the claims which they had for board
and pecuniary advances.
To this it was answered,
1. That as the deed of settlement declared that the power of
division was to be exercised on the youngest of the pursuers at-
taining majority, failing . which, it was to be < equally divided
among them ; and as the youngest had attained majority in Oc-
tober 1824, and no division had been made till May 1885, the
fund must belong to the pursuers in equal shares.
8. That as the division had been made with a view to defeat
this action, and not in the fair exercise of the power, and was pal-
pably unjust, it was totally unavailing ; and,
S. That as the defenders had enjoyed the benefit of the pur-
suers' services during their minorities, they had no claim for
board; and the advances were denied.
The Lord Ordinary found, * that by the disposition and deed
< of settlement of the deceased Robert Stein, father of the de-
' fenders, dated 15th August 1816, he bequeathed a sum of
« i?500 sterling to Robert, Prudence, and the pursuer Euphemia
' Stein, the three children of his son David deceased, payable
' upon the youngest of them attaining majority, in such propor-
' tions as a majority of his daughters, surviving at the term of
* payment, should direct by a writing under their hand ; and
COURT OP SESSION. 108
failing such division, then the same should fall and belong and
be paid to his grandchildren equally :— that the defenders, to-
gether with a sister now deceased, accepted of the said disposi-
tion and settlement, and intromited with the estate and effects,
and the defenders have rendered themselves liable for the said
provision of £500 bequeathed as aforesaid : — that Robert Stein,
die youngest of David Stein's children, arrived at the age of ma-
jority on the day of October 1824, but no division of the
said sum of £800 was then made by the defenders : — that re-
peated applications having been made to them for payment of
the said sum, no notice was taken thereof, and the said Robert,
Prudence, and Euphemia Stein, and John Maughan, husband
of Euphemia Stein, upon the 15th day of June 1825, entered
into an agreement to divide the said provision equally among
them : — that the defenders, upon the 6th day of May 1825,
executed a paper, called a deed of division, making a distribu-
tion of the said sum of i?500, in which they bestow no less than
£4Q0 upon Robert Stein, and no more than -£50 each upon
Prudence and the pursuer Euphemia Stein, the terms of which
deed were not intimated to the pursuers till some months after
the present action was raised : Finds that, in these circumstances,
the said division is utterly incompetent, and therefore finds the
defenders liable to the pursuers, Euphemia Stein, and John
Maughan her husband, in one third part of the said sum of
£500, with the legal interest thereof from Martinmas 1816, being
the term of payment ; and with regard to the defenders1 claims
of compensation, repels their claim for the pursuers' board, but
finds them entitled to credit for such sums of money or articles
as they can legally instruct to have been furnished to or on ac-
count of the pursuers ^and remitted to an accountant to report
as to these claims.
The defenders having reclaimed, the Court, without hearing
the counsel for the pursuers as to the division, adhered ; but re-
mitted to the Lord Ordinary to hear parties further as to the
claim lor board.
Lord President. — The division which has been made is quite in-
competent, and indeed it seems to have been made with a view to
enable the defenders to compensate the claim which they allege they
have against Robert for their advances in putting him into business.
Lord Balgray. — The interlocutor appears to me to be quite right
as to the power of division. The defenders should have known
when the pursuers attained majority, and then have made the divi-
in teems of the deed of settlement. But they did not do so,
104 CASES DECIDED IN THE
and therefore there was immediately yetted in the punuero an in-
terest in the fund to the: extent of one third each. Besides, it ap-
pears to me that this division has not been made in a pure and pro-
per manner. On this part of the case I hare no difficulty ; but I
rather think that some allowance should be, made for board.
, Lord Craigie. — I am not sure that I can go so far as Lord Balgray,
as to bold that the power required to be exercised on the very day
when the youngest child attained majority. I am clear, however,
that we cannot sustain the division which has been made* If the
defenders have any just claims against the pursuers, they must of
course be entitled to deduction ; but that matter remains for in-
vestigation.
Lord Gillies. — I concur entirely in the opinion of Lord Balgray as
to the power of division. We cannot, however, repel the claim of
board, as has been done by the Lord Ordinary. In the circum-
stances, I think that it should be limited to the interest of the prin-
cipal sum.
i
Horne and Rose, W. Sj — Inglis and Weir, W. S. — Agents.
No. 67« A- Gall, Pursuer. — Sol -Gen. Hope — Dickson.
Mrs. Adie and Others, Defenders. — Cockburn — Marshall.
Dec. 8. 1826. This was a special case, in which the pursuer endeavoured to
1st Division. °bviate an objection to his title by reference to a series of inter-
Lord Medwyn. locutors which he alleged had the effect to sustain it. The Lord
Ordinary having appointed parties to debate thereon, and there-
after appointed the pursuer to lodge a condescendence, he re-
claimed ; but the Court adhered.
D. Clyne, Agent.
No. 68. T. A. Fraser, Pursuer. — Gordon,
A. T. F, Fraser, Defender. — Cockburn — Rutherfurd.
Trutt — Entail.— Certain persons holding an entailed estate in trust, under con-
dition that they should only denude in favour of the heir when the whole
debts affecting the estate were extinguished, and haying denuded while certain
debts remained unpaid, to answer which, however,. they stated that they had re.
t tained funds— Held, on these debts being demanded from a succeeding heir, that
he was entitled to decree in an action of relief, not only against the trustees, but
also against the representative of the heir in whose favour they had denuded, and
who had granted them a discharge.
Dec. 8. 1826. [The Lovat estate, which had been forfeited in 1745, was re-
2d Division, stored in 1774 to General Simon Fraser, eldest son of Simon
LordCriogietie. Lord Lovat, subject to a considerable debt then due to the Crown.
B.
COURT OP SESSION. 106
Immediately thereafter General Fraser executed a deed at entail
of the estate, accompanied by a trust-deed, whereby certain per-
sons were put in possession of the estate, as trustees, for the pur-
pose of applying the rents to the liquidation of the debt, allowing
only £5QO a year to the heir of entail. General Fraser died in
1782, and was succeeded by his brother, whose son Archibald
obtained an act of Parliament for altering the nature of the trust,
and selling such parts of the estate as might be necessary to pay
the debts due by the entailer, and thereafter establishing a sink-
ing fund of £400 per annum, to be ultimately employed in the
purchase of lands to be entailed in place of those sold under au-
thority of the statute. This act accordingly empowered the per-
son* who were trustees under the original deed of trust to take
step? for carrying it into effect, and directed that when the pur-
poses ot the act should have been so carried into effect by ex-
tinction of the debts, they should denude themselves of the estate
to the heir of entail for the time entitled to possession. Certain
lands were accordingly sold ; and in 1801 the trustees having, as
they alleged, paid off ail the debts, or provided funds for their
extinction, executed a procuratory of resignation in favour of the
late Lovat, proceeding on the narrative of all the debts being
paid, and they received from him a deed of ratification and dis-
charge, in which, after narrating the whole proceedings under
the trust, and that all the debts were paid, excepting four spe-
cialiy mentioned, as to which certain disputes were depending, he
discharged the trustees, and bound and obliged himself, his heirs
of entail, and successors whomsoever, * to free and relieve the said
* trustees, and their heirs and successors, of all engagements
c which they may have come under relative to the said entailed
• estate/
On the death of the late Lovat, the present pursuer succeeded
to the estate of Lovat as heir of entail, and payment of the debts
specified in the above-mentioned discharge, and which had not been
paid, having been demanded from him, he raised an action of re-
lief against the trustees, and also against the present defender, who
was the representative of the late Lovat. Various defences were
pleaded, and a long litigation ensued ; but the Lord Ordinary
ultimately decerned against all the defenders, jointly and severally,
in relief, (except in regard to one of the debts which was proved
to have been paid,) and found them liable in expenses. In this
interlocutor the trustees acquiesced ; but Lovat* s representative
reclaimed, and contended, inter alia, that if sufficient land to
pay the whole debts had actually been sold by the trustees, and
if the amount thus provided for the extinction of the debts here
106 CASES DECIDED IN THE
in question had been retained by then), and was still in their
hands, there was no ground for this action as against Lovat's
representatives, however justly it had been raised against the
N trustees ; and, on the other hand, that if land had not been sold to
pay these debts, then the pursuer, as heir of entail, was lucratus
thereby, and was not entitled to demand relief against the claim
for the debts, and also to retain the additional land so possessed
by him, which ought to have been sold to pay them.
The Court, however, unanimously adhered.
Lord Justice-Clerk. — It was perfectly right in the trustees to de-
nude of the estate, after having paid all the debts, or provided funds
for their extinction. But this is an action of relief, calling on them
to do their duty in applying these funds to these debts. The late
Lovat's representative is also properly called, because, if funds had not
been retained, he would have been liable as representing the heir be-
nefited by the immediate renunciation of the estate on the part of
the trustees. Both parties, however, have kept up a long and use-
less litigation, and they must, conjunctly and severally, bear the con-
sequences in the expenses awarded against them.
Lord Alloway-— I entirely agree with what has been stated from
the Chair. The late Lovat bound himself and his heirs to relieve
the trustees from all obligation arising from their ceding the estate
to him ; and I therefore cannot distinguish between his representa-
tive and the trustees.
Lords Glrnlee and Pitmilly concurred.
J. Morison, Wt S. — JE. Macbean, W. S<-*>Agents.
No. 69* J« Cockburk and Others, Pursuers. — Clerk Maxwell.
W. Wallace and Others, Defenders.— Sol.-Gen. Hope— Skene
— Robertson.
Dec. 9. 1826. The case noticed ante, Vol. IV. No. 109, having been appeal-
l st Division. e^ by the Governors of Heriot's Hospital, and the judgments, so
Lord Meadow* far as they were concerned, reversed ;* and the interlocutor in the
question with Wallace and others having been delayed to be
signed in consequence of the appeal, they now contended that the
reversal necessarily implied that the judgments as to them were
erroneous ; but the Court, being satisfied that this was not the
case, adhered to their former interlocutor.
Russell and Cowan, W. S— MacRitchirs, Baylry, and Hender-
son, W. fiU— J. Pedis, W. S— -Agents. ■
bank.
H.
• See Wilson and Shaw's Appeal Cases, May 23. 1896, p. 893,
COURT OF SESSION. 107
W. Rot and Others, Advocators.— Jeffrey— Clephane. No. 70.
T. Weight and Others, Respondents. — Sol.-Gen* Hope—
M'Neitt.
Prices* Stat. 6. Geo, IV. e. 180. — Circumstances under which a record was ob-
jected to as irregular, and a remit made to the Lord Ordinary of new to prepare
the muse
In this case, which was an advocation under the old forms of p<c» 9. 1826.
process, the Lord Ordinary appointed a revised condescendence, 1st Dmsiow.
answers, and notes of pleas, in terms of the statute, which were Lord Meadow-
accordingly lodged ; and the record having been closed, and coun- „ '
sel heard, his Lordship pronounced judgment against Roy and
others. These parties having reclaimed, and the Court being of
opinion that the record bad not been made up in terms of the
statute, remitted the case back to the Lord Ordinary to prepare
the same in terms thereof.*
Lord President.— This record is worse than that of Sproat's, which
I formerly objected to; and I have resolved that I will not judge in
such cases. The condescendence and answers are filled with quota-
tions of interlocutors, excerpts from a proof, and with allegations in
point of law.
Lord Gillies*— It is the proper duty of the Lord Ordinary to see
that the erase is properly prepared, and therefore it should -be *e-
mitted back to him for that purpose.
Clephane* — This case proceeded for a considerable time under the old
system, and I endeavoured, without introducing the interlocutors in
the Inferior Court and the proof, to prepare the paper on behalf of
my clients ; but I found that I could not make the case intelligible.
No objection was made either by the opposite party or the Lord Or-
Lord President. — The statute must be obeyed* The proof should
not be quoted, the object of a condescendence being, not to aver what
k proved, but what is offered to be proved. It is no answer to say
that the Lord Ordinary did not object. We must enforce the sta-
tute. Indeed the real truth is, that both the Ordinary and the
counsel are to blame,— the counsel for giving in such papers, and
the Lord Ordinary for receiving them. We cannot advise the cose
on such a record ; it must therefore be prepared of new.
W. Guthrie, — D. Scales, — Agents.
• Excepting in this ease and that of Sproat; ants, No. 47, no other Record was
objected to, prior to the Recess, in either Division of the Court.
108
CASES DECIDED IN THE
2d Divisioit.
B.
No. 71. J* Mbnzies, Pursuer.— More.
J. and J. Beeey, Defenders.— Jameson.
Cettio Bonorum •- Expenses*— An opposing creditor in a cessio bonorum, having
failed to prove allegations of fraud brought forward by him against the bankrupt,
found liable in the expenses of the proof.
Dec. 9. 1826. M enzieb, having raised an action of cessio bonorum, was op-
posed by John and James Berry, the trustees of a creditor de-
ceased, on the ground of alleged fraudulent conduct on his part.
The Court allowed the defenders a proof of their allegations, in
which they proposed .that they should be received as witnesses
in regard to something which was said to have passed with the
pursuer when no other person was present ; but this having been
refused on account of their partial counsel in the cause, and the
proof having otherwise failed, the Court granted the benefit of
the cessio, and found the pursuer entitled to the expenses of the
proof.
A. Gifford, — A. Grbig, W. S— Agents.
F.
No. 72. J. White, Suspender.— Menxies.
W. MTablahe, Charger. — Sandford.
Process— 6. Geo. IV. e. 120.— A. S. Nov. 12. 1825. — Held discretionary in the
Judge to apply to cases previously in Court the provision in the above act of
sederunt relative to delaying an award of expenses for the discussion of dilatory
defences till the end of a cause.
Pec. 9. 1826. MTablane having in 1824 raised an action in the Court of
2d Division. Admiralty against White and others, as owners of the steam-boat
Admiralty. Fingal, plying in the river Clyde, for the balance of his wages as
Bill-Chamber, master, was met by the dilatory defence, that a certificate of re-
gistry was the only evidence of ownership, and that the Fingal had
never been registered. The defences were lodged before the late
Judicature Act came into operation; but it was not till after that
period that a judgment was pronounced by the Judge Admiral,
which repelled this defence, in respect the Fingal was only en-
gaged in inland navigation. The Judge Admiral having, however,
at the same time decerned in favour of M Tarlane for the ex-
penses of the discussion, White presented a bill of suspension, on
the ground that, by the act of sederunt 12th November 1825, it
was incompetent to award expenses on repelling a dilatory defence.
To this it was answered, That, as to causes already in Court, it
was in the discretion of the Judge Admiral to adopt the new form
COURT OF SESSION. 109
of procedure, only if he should deem it ' consistent with justice and
' the convenience of parties.' The Court unanimously refused
the bill.
£_
LiNimra and Nivnr, W. S«— J. B. Watt,— Agents.
J. Clark, Pursuer. — H. J» Robertson. No. 73.
J. Scott, Defender. — Robertson.
Parole Proof explanatory of Feudal 7T//*.— Proof allowed before answer in a ques-
tion with an onerous purchaser to explain a charter, containing more than one
description of the property conveyed, alleged to be contradictory.
Smith having purchased from Robert Inglis a feu possessed by Dec. 9. 1826.
him under the defender Scott as superior, obtained from the latter -j8d Divim
a charter, in which the feu was described as ' all and whole that Lord Macken-
' piece of ground, with the tenement of houses built thereon, at ****
' Biraie, lately belonging to and possessed by Robert Inglis, church-
' officer, but which he gave up to the proprietor in consideration
' of these presents being granted, measuring 85 feet in length, and
' 18 feet 4 inches in breadth over walls, bounded on the north by
* the yard at the back thereof, on the east by a piece of ground
' in front of Mrs. Morrice's house, on the south by the road lead-
' ing from the old road to Upper Birnie, and on the west by .part
* of the farm of Upper Birnie.'
On this charter Smith took sasine, which was recorded.—
Shortly thereafter he sold the property to the pursuer Clark,
who being refused possession of a workhouse or shop at the
west end of the tenement, brought the present action to have it
declared that it was included in his titles. This shop was sepa-
rated from the tenement by a narrow passage, and, with the
rest of the building, extended to within half a foot of the mea-
surement specified in the charter. '
In defence Scott averred that the shop in question had been
built by the tenant on his farm of Birnie, and had never been
possessed by Robert Inglis, or any of the pursuer's predecessors
in the feu; that the measurement specified in the,charter (which
was inserted with a view to regulate the amount of feu-duty, be-
ing a penny per foot,) hqd been erroneously made in consequence of
the person employed having by mistake included a barn behind,
which likewise, along with the principal tenement, extended exactly
to 85 feet, and that this shop was not bounded on the north by the
yard, as the tenement described in the charter was stated to be ; and
he craved to be allowed a proof of these allegations. Clark opposed
this on the ground, that being an onerous purchaser on the faith of
110 CASES DECIDED IN THE
recorded titles, which marked out the property in question by spe-
cific measurement, it was incompetent to allow these titles to be
redargued by parole proof.
To this it was answered, That where there was a angle de-
scription in a charter, it could not be affected by extraneous
proof; but that in the present charter, besides the measurement,
the property was described by the previous possession of Inglis,
and by the boundary on the north, which was contradictory of
the other description; and that, in these special circumstances, it
was competent to explain the description by a proof.
The Lord Ordinary found, ' that the terms of the feu-char-
* ter, and of the other title-deeds founded on by the pursuer,
* taken along with the averments of the pursuer, so far as ad-
' mitted by the defender, are not sufficient to render irrelevant
' the averments of the defender,1 and appointed the cause to be
enrolled, ' that a remit may be made to the Jury Court, or the
' cause otherwise disposed of, so as to ascertain the facts of the
c case.'
Clark reclaimed; but the Court adhered to the Lord Or-
dinary's interlocutor, c so far as it finds that the averments of the
* defender may be submitted to proof before answer, and remit*
* ted to his Lordship to receive a more regular condescendence
' from the defender, and thereafter to allow a proof to both parties
' of their respective averments in common form before answer ;
* but, in consideration of the nature of this case, without remitting
' the same to the Jury Court.*
Lord Pitbull Y— It is right here to allow a proof before answer, and
this ought to be done without going to the Jury Court, in a case
where the subject in dispute is so trifling* The ascertaining bow
the facts stand, is in no way contrary to any rule of law. When a
charter is clear and precise, it certainly cannot be controlled by pa-
role. But that is not the nature of this charter, which contains a
variety of descriptions. The pursuer rests on one of these only — that
of the measurement ; but the defender appeals to two other descrip-
tions in the charter — the ' belonging to Inglis,' and being bounded
by ' the yard on the north.' If there had been nothing mote in the
charter but the measurement, the pursuer's argument would have
been invincible, however great a mistake may have been committed*
But here there are other descriptions ; and it is necessary to ascer-
tain how the facts stand before answer. It will still be open, if the
descriptions are found to be contradictory, to argue on the question
of law which is to rule ; but we cannot exclude proof to explain the
description.
Lord Alloway— 3 entertain great doubts of the Lord Ordinary a
interlocutor.' The superior is the peisbri who prepares tie Seed ;
COURT OF SESSION. Ill
. mad he has given explicitly 85 feet ever walls, to which the property,
ea claimed by the pursuer, extends within half a foot, with a feu-duty
of a penny per foot; and how is it possible to modify the 85 feet?
It is a matter of no consequence whether it was possessed by Inglis
or not ; we can only look at the description the superior himself
gives. Jt is said the yard on the north does not run the whole
length ; but it is a common mode of expression to say that a pro-
perty is bounded by a yard &c, if the greater part is so. Supposing
that there really had been a mistake as to the measurement, as is
averred, we could not alter it. Third parties have contracted on
the faith of the description in the charter ; and it is not admissible
to control or limit, or even to explain by parole, a written deed on
which third parties have contracted, nor possible, in this way, f&
correct a mistake in feudal rights.
Loxn Justice-Clerk concurred with Lord Pitmilly.
J. R. Stodart, W. S. — J. Ker and H. G. Dickson, W. S. — Agents.
J- Duncan, (R. Scougal and Co/s Trustee,) Pursuer. — Cock- No. 74.
hum— Jameson.
J. C. Porterfield and J. Buchanan, Defenders. — D. qfF.
Mcmereiff—Shaw Stewart.
Cautioner.— Held that cautioners for the trustee on a bankrupt estate were relieved
by the grots negligence of the commissioners and creditors in superintending
and controlling the conduct of the trustee.
The estates of Richard Scougal and Company, merchants in Dec. vs. 1&26.
Glasgow, were sequestrated on the 7th of November 1814 in virtue ]BTplvl8I0N#
of the bankrupt statute ; and Boyd Dunlop having been appointed Lords Alloway
trustee, the defenders, Mr. Porterfield and Mr. Buchanan, became and EWin*
cautioners for him to the extent of <£ 10,000. By the terms of
their bond they ' bound and obliged themselves, jointly and seve-
4 rally, and their respective heirs, executors, and representatives
* whomsoever, that the said Boyd Dunlop, as trustee foresaid,
4 shall faithfully manage the said sequestrated estates, and con-
4 form himself in all respects to the rules and regulations pre-
4 scribed by the foresaid statute, as incumbent upon the trustees
4 in the management thereof, and to such further rules and regu-
* lations as the Court of Session might make in virtue of the
* powers committed to them for carrying the said act into exe-
4 cution ; and that the said Boyd Dunlop shall faithfully account
4 for and pay to the creditors of the said Richard Scougal and
VOI« T. H
112 CASES DECIDED IN THE
< Company, and the said individual partners thereof, whatever
' sum or sums the said Boyd Dunlop, as trustee foresaid, may
' recover or intromit with, of or belonging to the said sequestrated
' estates : But providing and declaring always, that this bond
' and obligation, in so far as we, the said James Corbett and
* John Buchanan, and our aforesaids, are concerned, shall extend
' only to the foresaid sum of i?10,000 sterling, agreeably to the
' minutes of election before referred to, and no further/
On the 14th of September 181 5, (being ten months from the date
of the first deliverance,) Dunlop made up a state of his accounts
in terms of the statute, with a view of striking the first dividend,
which was accordingly fixed at 8d. per pound. There having
been, however, certain claims objected to, a considerable sum was
left in bank to await the issue of their discussion in Court. Be-
tween the above date and the 18th of March 1816, Mr. Dunlop
had uplifted i?900, being part of the money so deposited, and
applied it to his own purposes. On the last of these dates he
exhibited his accounts to the commissioners, stating that these
sums had been applied by him to the use of the estate; that
£283$ remained in the hands of Sir William Forbes and Com-
pany, and JP110 in the bank of Carrick, Brown, and Company.
The commissioners accordingly, after examining these accounts,
marked them with their initials, and two of them subscribed the
following certificate:—' We, the undersigned commissioners
* upon the sequestrated estate of Richard Scougal and Com*
* pany, having examined the accounts of the trustee, find the
' same accurately stated, and the sums received by him were, in
* terms of the statute, regularly deposited in thte bank, and
' those drawn out were disbursed for or on account of the bank-
* rapt estate.'
Again, on the 18th of September 1816, the trustee exhibited
his accounts to the commissioners, from which it appeared that
there were then J?3861 in Sir William Forbes and Company's
hands, and <£255 in those of Carrick, Brown, and Company. A
second dividend was struck, and JS1SSS were set aside to meet
the disputed claims. The commissioners certified these accounts
to be correct, and the creditors at the same time granted a dis-
charge of the dividend so paid to them, in these terms: —
( Considering that the said Boyd Dunlop did, in terms of the
v ' statute, make up and exhibit to Robert Finlay and Robert Brown
' junior, two and a quorum of the said commissioners, a state of
* his intromissions with, and disbursements made by him on ac-
* count of the said estate, and that the said commissioners did,
COURT OF SESSION. 119
* by a minute signed by them, and engrossed in the sederunt*
' book, find the same accurately stated, and that the sums re-
' eeived by him were regularly deposited by him in the bank,
' and those drawn out were disbursed for or on account of the
'bankrupt estate, &c. ; therefore we have exonered and dis-
* charged, and hereby not only exoner and discharge the said
1 Boyd Dunlop, and his heirs and successors, and his cautioners
( in the said sequestration, of the said second dividend,' &c.
* And further, we do hereby, for ourselves and those for whom
* we act, ratify, approve, and confirm the whole actings, transac-
* lions, management, and intromissions of the said Boyd Dunlop,
4 as trustee foresaid, relative to the said bankrupt estate, at and
* prior to the 18th September last (1816), when the dividend was
* declared."
From that period, viz. the 18th of September 1816 to De-
cember 1822, when Dunlop died insolvent, no further inquiry
was made into the state of the trust, and his accounts were never
audited. Soon after his death, it was discovered that he had in-
tromitted with the funds of the estate to the amount of £2860 ;
and Duncan, having been appointed trustee in his place, brought
an action against Porterfield and Buchanan, founding on their
bond of caution, and concluding against them for that sum, and
for £99SSt as interest at the rate of 90 per cent.
In defence against this actum it was pleaded,
1. That as they entered into the cautionary obligation in re-
ference to the provisions of the bankrupt statute, whereby the
creditors, either by themselves, or by their delegates the commis-
sioners, Were bound to exercise a proper control and superin-
tendence over the trustee, ij *as an essential condition of their
bond that this should be done ; but that both the creditors and
their commissioners had been guilty of gross negligence in watch-
ing over the conduct of the trustee, and particularly in not bringing
him to account in terms of the statute ; and therefore, as this fun-
damental condition of their contract had been violated, they could
not be bound by it ; and,
£. That as certificates had been granted by the commissioners,
and these had been confirmed by the discharge granted by the
creditors, the defenders were entitled to rely upon the truth of
them, and they could not be made responsible for the falsehood
so stated by the commissioners, or for their neglect in not making
due inquiry.
To this it was answered,
1. That, by the nature of the bond, the defenders became bound
for the consequences of the trustee neglecting to perform his duty ;
h2
114 CASES DECIDED IN THE
that it was incumbent upon them to keep a watth over hi* con-
duct, it being their peculiar duty so to do ; that their bond was
expressly to that effect, and it could not. have been contemplated
that this was to be done by the creditors, who in extensive se-
questrations were generally dispersed, and resided at places dis-
tant from where the trustee had to act ; and,
& That the circumstance of the trustee having contrived to im-
pose upon the commissioners was just a breach of that faithful
conduct for which the defenders had become responsible.
Lord Alloway c repelled the defences in so far as regards the
' principal sum pursued for,1 and decerned accordingly ; but ap-
pointed parties to be further heard as to the interest. Thereafter
the question as to the interest having been discussed before Lord
Eldin, and having advised a representation for the defenders as
to the principal sum, he altered, and assoilzied them from the
whole conclusions of the libel, 'in respect that the defenders, as cau-
* tioners for the deceased Boyd Dunlop in the sequestration of
* Richard Scougal and Company, had a right to rely upon the vigi-
* lance of the commissioners, and that of the creditors themselves,
' for preventing the funds from being embezzled by the trustee, and
' in respect the said commissioners and creditors have grossly
( neglected their duty to the cautioners, and have allowed the
' trustee to embezzle a great part of the funds, without taking
* the steps required to preserve them.'
The pursuer having reclaimed, the Court, without hearing the
counsel for the defenders, adhered.
Lord Balgray. — This case* appears to me perfectly clear. In this
question we must regard the creditors as in the situation of a single
individual; and if so, could it be maintained that, in the circumstances
of the gross negligence displayed in this case, any claim could lie
against the cautioners ? Certainly not. But the commissioners are
appointed by the creditors as their delegates for the very purpose of
superintending the conduct of the trustee; and if these commissioners
have violated their duty, the cautioners cannot be liable.
Lord Craigis*— I am of the same opinion. We must hold in law
that the misconduct of the commissioners is that of the creditors; and
it is impossible, in the circumstances of this case, that the creditors
can maintain a claim against the cautioners.
Lord Gillies. — I concur in these opinions. Indeed, the argument
for the pursuer seems to amount to this, that although the trustee
and the creditors, or, what is the same thing, the commissioners,
combine to commit a fraud, the cautioners must be liable for the
trustee.
Lord President.— -Where there is a duty imposed on a creditor, or
COURT OF SESSION. 115
which, in point of law, he is bound to perform, it must be presumed
that a party, in becoming a cautioner, relies on this being done. It
cannot be held that thereby the creditor was to be allowed to neglect
that duty. Accordingly there are numerous instances of the appli-
cation of that rule in England, where they seem even to carry it
further, and to free the cautioner. The same rule has also regulated
the decisions as to bank agents.
Pursuers Authorities.— Hamilton, June 18. 1706, (2091) ; Wallace, Feb. 20. 1707,
(2096) ; Alexander, Dec. 6. 1671, (2089.)
Defenders' Authorities.— 3. Ersk. 3. 66 ; Dick, No?. 30. 1697, (2090) ; Thomson,
Jan. 29. 1822, (ante, Vol. I. No. 319. as rev. June 9. 1824) ; Fell, 178. 185.
m
J. Mowbray, W. S.— A. Swinton, W. S.— Agents.
Houston's Executors, Pursuers.— Futterton. No. 75.
J. C. Pobteefield and J. Buchanan, Defenders.—
2>. qfF. Moncre\ff—Shaw Stewart
Ceutiamer — Sequestration 64. Geo. III. o. 137.— Held that where a cautioner for a
trustee has been found not liable for his misconduct in respect of the gross neg-
ligence of the commissioners and creditois, it is not relevant to a.lege that the
claim of a creditor had been rejected and was under discussion, and so could not
interfere m the management of the estate, in respect he was not thereby deprived
of his control over the conduct of the trustee.
This was a branch of the preceding case. The executors of pec. 13. jg26.
Houston had claimed on the estate of Scougal and Company ;
but their claim was disputed, and it was under discussion in this j^ Eldin*
Court during the period when Mr. Dunlop was in office as trus- H.
tee, and intromited with the funds which had been deposited in
bank. In the above case they made appearance ; and in addition
to the arguments maintained on the part of the pursuer, they
contended that, as their claim had been rejected, they were de-
prived of any control over the trustee, and therefore the de-
fences of the cautioners could have no effect against them. The
Court, however, holding that although their claims were under
discussion, they had a right to exercise a superintendence over
the trustee, and to have interfered equally as well as any other
creditor, adhered to the interlocutor of the Lord Ordinary as-
soilzieing the cautioners.
Defenders* Authority,—*. Bell, 381.
J. Smyth, W. S— A. Swinton, W. S.— Agents,
116
CASES DECIDED IN THE
No. 76.
Mrs. Sutherland and Others, Pursuers. — Jameson—*
J. 3T Donald.
Mrs. Fraser and Others, Defenders. — Cockburn.
Decree of Constitution.— Circumstances under which decree of constitution was
pronounced, sisting execution.
Dec 13. 1826. The pursuers, as representing the late George Mackay,
1st Division, brought an action against the defenders, the heirs of the late John
s.
Lord Meadow- Fraser, writer to the Signet, concluding for £9SCl. 19s. In sup-
bank, p^ Q£ t]jjs ciaifl^ they founded upon a docqueted account prepar-
ed in a submission between Mackay and the tutor of Lord Reay,
whereby Fraser acknowledged that, as agent of Mackay, he was
indebted to him in the above sum ; and the arbiter pronounced
decree to that effect In defence, it was maintained that Fraser
was no party to the submission ; and at all events, as he had been
merely the agent of Mackay as factor for the trustees of Lord
Reay, and as there was a process of multiplepoinding and exoner-
ation depending in Court, in relation to the claims of the respec-
tive parties against each other, this process ought to be sisted till
the issue of the multiplepoinding.
. The Lord Ordinary sisted process accordingly ; but the Court
altered, and pronounced decree of constitution, sisting execution
in the mean while.
»
C. M'Donald, W. S. — J. Mowbray, W. S. — Agents,
1st Division.
Lord Eldin.
No. 77. J- Hallidat, Suspender. — Sol.-Gen. Hope — Graham Bell.
T. Halliday, Charger. — D. qfF. Moncreiff— Marshall.
Oath— Intrinsic or Extrinsic— Held, that an allegation that a bill had been granted
in fulfilment of a promise to pay a tocher, was extrinsic, and no other value be-
ing alleged, that the bill was not onerous.
Dec. 13. 1826. James Halliday having been charged on a bill accepted by
him for i?480 in favour of the charger, his son-in-law, pre-
sented a bill of suspension, alleging that he had received no value
for it, and that it had been obtained from him under circum-
stances of fraud. He further stated, that he was a person con-
siderably advanced in life, was in poor circumstances, and had
never possessed more than £500 ; that the charger was a common
labourer, to whom he had intrusted the management of a farm of
which the suspender was tenant, arjd that it was never in his power
to have given value for that bill. These allegations having been
denied, the suspender made a reference to the oath of the charger,
who accordingly emitted a deposition. After giving a history of
COUBT OP SESSION. 117
various small money transactions between them, he was ' inter-
( rogated and desired to say,. whether, upon the date of the bill
' charged for, he gave the suspender, or paid him down in cash,
* any value therefor/
To this he answered, ' That, before his marriage with the sus-
' pendens daughter, he promised to give the deponent £500 as
' his daughter's tocher ; and a good while after the deponent went
* to reside at Birkshaw, he demanded payment of that sum from
< the suspender, upon which the suspender said that he would
' only give him £4B09 and that if he would go to Lockerby, and
* get a hill written out for that sum, he the suspender would ac-
* cept it ; and the deponent did accordingly go to Lockerby, and
4 got the bill charged on written, and in the deponent's presence
* the suspender accepted that bill of the date it bears, viz. the £d
' of February 1824/
On advising the oath, Lard Medwyn found it negative, and
refused the bill ; but the Court passed it without caution or con-
signation.
On the part of the suspender it was then contended,
1. That the allegation that he had come under an obligation,
prior to the marriage of his daughter, to pay to the charger the
sum of £500 as tocher, and that the bill had been subsequently
granted in implement of that obligation, was extrinsic ; that as he
denied that he had ever done so, the charger could not establish
it by his own oath, and therefore the bill must be considered as
having been granted without value.
£. That considering the relative situation of the parties,' such
an allegation was utterly incredible ; and as the bill had been ob-
tained under circumstances stropgly indicative of fraud, the char-
ger had made oath in the above terms, merely with the view to
carry that fraud into effect ; and,
3. That even supposing that his allegation were to be held as
true, it was not competent to constitute a debt of that nature by
bill.
To this it was answered,
1. That as it was proved by the bill that the suspender was
indebted to the charger in the sum there mentioned, it was incum-
bent on him to establish clearly that no such debt existed ; that
accordingly he had referred that fact to the oath of the charger,
who had deponed that the bill was granted for an onerous and
lawful consideration, namely, the tocher which was to be pay-
able on the marriage of the charger with the suspender's daugh-
ter, and on the faith of which the marriage had taken place ; that
this was intrinsic, and therefore the suspender had not proved his
allegation.
H£ CASES DECIDED IN THE
2. That the only relevant subject of inquiry was not as to the
credibility of the statements made in an oath, but as to what had
been deponed to ; that, however, it appeared from a state of the
affairs of the suspender that he was perfectly able to have afforded
such a tocher ; and,
3. That there was no objection to such a debt being constituted
by bill.
The Lord Ordinary suspended the letters simpliciter, and found
expenses due, * in respect that the conduct of the charger was ap-
* parently intended for the purpose of evading the truth, and de-
* frauding the suspender of his property, in which he would have
' succeeded, if he had not been prevented.*
The charger having reclaimed, the Court remitted the case to
the Lord Ordinary to form part of the trials of Lord Probationer
Newton ; and thereafter, upon his report, adhered upon the ground
stated in the Lord Ordinary's interlocutor ; and also, ' in respect
' of the further reason that the allegation by the charger in his
4 oath, as to the original ground of the supposed debt <?r obliga-
' tion, is extrinsic to the point referred to the said oath.9
a
The Lord Probationer was of opinion, that, in the peculiar circum-*
stances of this case, an inquiry should be made into the state of the
suspender's funds, and that for that purpose a condescendence should
be ordered.
Lord Balgrat. — There are two views in which this case may be
considered, — either as resting on a downright fraud, or on the inter-
pretation of the oath. If we are to place our judgment .on the former
of these grounds, there ought to be further investigation ; but I think
that unnecessary. There has been here a reference to oath, and we
must judge as to the import of it by the oath alone. Now what the
charger says is, that he, a labourer, married the suspenders daughter ;
that he gave no actual value for the bill, but .that he got the pro-
, raise from him of a tocher with his daughter of £500. But this
allegation cannot be established by his own oath ; and therefore it is
an extrinsic quality which he must prove aliunde. Being extrinsic,
and no other species of value being alleged, the letters must be sus-
pended.
Lord Craigie. — I am entirely of the same opinion. Where a party,
in an oath, refers to a separate obligation as creating a ground of
debt in his favour, he must prove it otherwise than by his own oath ;
and that is the situation in which the present case stands.
Lord Gillies.— I think the interlocutor quite right, that there was
a palpable fraud, and that there is no necessity for further inquiry.
The charger says that this poor old man promised to give a tocher
of £500 to this person, who is a common labourer, and that this was
COURT OF SESSION. 119
to be paid during his life. If we were to hold such an allegation
intrinsic, any party might constitute a debt in his own favour, and
recover it in the way attempted here. But it is quite extrinsic, and
therefore no regard can be paid to it.
Lord President. — I conceive that the law of extrinsic and intrinsic
is this, that when the party swears that there was a certain stipulat-
ion or obligation in his favour forming pars ejusdem negotii, it will
be intrinsic, otherwise not. If this bill had been dated prior to the
marriage, and it had been sworn that it was given at that time, and
constituted the tocher, the charger might have had a better case.
But this is not what he depones. He swears that it was given to
him long subsequent to the marriage ; so that his allegation of a pro-
mise rests upon his own assertion alone, and is entirely extrinsic
W. Douglas, W. S. — J. M*Cbacken, — Agents.
Miss M. M. Bruce, Pursuer. — BeU — Skene— H. Bruce. Jfo. 78.
M. Bruce, Esq. Defender. — D. off. Moncreiff—Sd.-Genm Hope
—A. Wood.
Implied Obligation— Passive Title.-- A. father having conveyed his estate to his son
by a mortis causa disposition, subject to his debts, and a provision to his daugh*
ter, for the payment of which the son was to be personally bound by acceptance
thereof ; and he having accepted and entered to possession, and intromitted with
his father's effects— Held that the son did not make himself liable to any greater
extent than to count and reckon with the daughter for his intromissions.
Thb late Patrick Crawford Bruce, Esq. who' resided in En- Dec. 13. 1886.
gland, and was proprietor of the estate of Glenelg in Scotland, isr Division.
made up, with a view to the settlement of his affairs, a state of Lord Meadow-
them, from which it appeared that he conceived he had a clear *? *
reversion of upwards of i?162,000. On this subject he had pre-
viously addressed a letter to. the defender, his eldest son, in
which, after mentioning that he was to make certain provisions
in favour of another son and two daughters, (of whom the pur-
suer was the eldest,) he stated, € that fortune having been propi-
* tious, and you being primogenitus, and considering that there
* is wherewithal to establish a family, you therefore, under the
' whole of the foregoing circumstances and considerations, are
' likely to possess the great division pr portion of my fortune/ lit
a letter to his agent in Scotland, relative to the preparation of his
deed of settlement, be. informed him that ( my intentions are, that
* my landed property in England and Scotland shall be equally
* liable with my personal estate for the payment of my debts,
' vrbetber on heritable security, bond, or note of hand ; that they
1«0 CASES DECIDED IN THE
( shall also be liable to the patrimonies or provisions I may make
« to my younger children, — to the dower or jointure I may give
c to Mrs. Bruce, — and, in short, that no preferable right is to vest
* in my eldest son or heir at law, whoever he may be, until pro-
' vision is first made for my debts, legacies, and bequeathments
c of every description ; and that then, but not till then, he can
* claim a separate and first right to Glenelg.'
Accordingly, on the 10th of July 1819, he executed a deed of
settlement in the Scottish form, by which he conveyed his estate of
Glenelg to the defender, subject to the burden of his debts, and
payment to the pursuer of the sum of o£20,000, and the further
sum of £500 per annum on the death of her mother, and while
she remained single and unmarried ; besides certain other pro-
visions in favour of his other children. By a clause in the deed
he appointed these.burdens * to be inserted in all charters and in-
€ feftments to follow hereon, and in all transmissions of the lands
* and others above conveyed, so long as the said burdens shall
* rema^ unpaid, and that under the pain of nullity .' And he in-
serted a further declaration in these terms :— * All which debts,
' annuities to my wife and eldest daughter, and provisions to my
' younger children above mentioned, the said Michael Bruce, and
„( the heirs succeeding to him as aforesaid, shall also, by accept-
' ance of these presents, be personally bound to pay/
Besides this deed, Mr. Bruce executed a will in the English
form, by whicji he conveyed the whole, of his property, real and
personal, situated in England to the defender, subject to the
above burdens. k Mr. Bruce died on the 31st March 1820, and
the defender thereupon obtained himself served heir — made up
titles to the estate of Glenelg— entered to possession — proved the
will in England, and intromitted with the whole effects situated
tlhere, which were sworn to as not exceeding jP70,000.
After the lapse of five years, the pursuer raised an action against
the defender, in which she concluded, 1. To have it declared that
the above provisions in her favour formed real burdens upon the
estate of Glenelg ; and, 2. That the defender should be ordained
to pay to her the provision of jP20,000, and also the annuity of
£500, in terms of the deed of settlement Decree of declarator
was allowed to be pronounced to the above effect ; but the de-
fender having resisted the petitory conclusion, the pursuer, in
support of it, pleaded,
1. That in virtue of the condition annexed to the disposition
and deed of settlement, whereby the defender was declared to be
personally bound by acceptance to pay the provisions made in
her favour, and uMwnsequence of his acceptance of that disposi-
COURT OF SESSION- 1«1
tion, and of having' entered. to and enjoyed possesion, she was
constituted his personal creditor for the provisions ; and,
2. That as he had served heir to his father, and intromited
with his whole means and effects, he was liable on the passive titles.
To this it was answered,
1. That the deed of settlement had been made by Mr. Bruce
on the supposition, not only that he was perfectly solvent, but
had a large reversion, whereas it had turned out that his estate
was inadequate to pay his debts ; — that it was plainly his inten-
tion that the provisions to the pursuer and the other members of
his family should only be payable in the event of there being funds
for that purpose ;— that in point of fact there were no such funds,
and therefore no personal liability could attach to him, and that
he had always been willing to count and reckon for his intromis-
sions; and,
2. That as the pursuer was a mere gratuitous legatee or dis-
ponee, and not a creditor of Mr. Bruce, she had no right to found
on the passive titles, to the effect of rendering the defender per-
sonally liable.
The Court, on the report of the Lord Ordinary, found ' that
' the suspender is not liable ultra valorem of the estate and effects
1 belonging to his deceased father, and proceeds thereof; and re*
' mitted to the Lord Ordinary to proceed accordingly.'1
Lord Balgr at. — In judging of this case, we must have regard both
to the deed of settlement executed by Mr* Bruce relative to his
heritable estate here, and his effects in England, so as to ascertain
what his intention was. He gave his estate to his eldest son, sub-
ject, no doubt, to the burdens founded on by the pursuer ; but it is
perfectly plain that he did not intend that any responsibility should
attach to him, if in truth there were no such estate. The defender
thereby placed in the situation of an ordinary trustee, and it
out of that estate that the provision was to be paid. The ut-
most, therefore, which the pursuer can demand is, that the defender
shall count and reckon with her for the value of that estate.
Lord Gillies. — I am of the same opinion. The service of the de-
fender, no* doubt, renders him liable to pay the debts of his father ;
but the claim of the pursuer is not of the nature of a debt : it is an
ordinary gratuitous provision or legacy. Both parties rest on the
deed of settlement ; and, in construing it, we must inquire into what
was the will or intention of Mr. Bruce. It is impossible, however,
to hold that he could ever have contemplated that the defender
should, under the existing circumstances, be personally liable for the
provision bequeathed to the pursuer.
Lord Ckaioix>— I concur in the opinions which have been delivered.
122 CASES DECIDED IN THE
Two grounds of liability have been maintained by the pursuer ; first,
the acceptance of the deed, and second, the passive titles. As to
the first of these grounds, I am clear that it cannot infer any further
personal responsibility than to account for the funds actually intro-
mitted with, just as if the defender were a trustee. It was «o de-
cided in the case of Smith v. Marshall — a decision which proceeded
od general principles, and agreeably to the opinions of Lords Brax-
field and Monboddo. But the defender does not dispute that he is
liable so to account.
Lord President.— -I am of the same opinion, \yith regard to the
passive titles, the disposition of the law has, in more modern times,
been to relax the strict liability formerly inferred by intromission,
even in a question with onerous creditors. But the pursuer is merely
a gratuitous disponee, and cannot insist for more than a fair account-
ing.
Pursuer'* Authority.—*. Ersk. 3. 49.
Defender's Authorities.— Kames' Pr. Eq. 149. 159. SOI; Pringle, Feb. 1. 1671,-
(6374); D. of Lauderdale, Dec. 19. 1684, (6379) ; Kettlestone's Daughters, Feb.
1688, (6376); Smith, July 21. 1780, (2322); 1. Stair, 7. 13; 1. Stair, 5. 13;
3. Stair, 6. 1 ; 3. Stair, 7. 13 ; 3. Stair, 9. 7 f 2. Bank. 427 ; 3. Ersk. 8. 50; Gor-
don, Jan. 27. 1789, (9733) ; Crs. of Blair, May 13. 1791, (9734.)
J. Greig, W. S. — A. Swlnton, W. S. — Agents.
4
No. 79. Meldbum's Tbustees, Pursuers. — Forsyth.
A. Clark, Defender. — Tawse — J. Henderson jun.
Trust — Consignation. — An acceding creditor to a voluntary trust, under which the
trustee had entered into possession of the estate, having obtained from the bank-
rupt a quantity of grain and sold it, held not entitled to set off the price against
his debt, or retain it in payment' of his;dividend, but bound, in an action at the
instance of the trustee, to consign the whole amount* without deduction of part
which he had failed to recover, or of payments made to the bankrupt without
authority of the trustee. '
Dec 13. 1826. Meldrum having executed a trust-deed in favour of the pur-
0 r suers for behoof of his creditors, it was acceded to by the defender
2d Division. . J
Ld. Cringletie. Clark. The trustees for some time allowed Meldrum to manage
B. his estate, but afterwards appointed a factor, who entered into
possession. Some time subsequent to this appointment, Meldrum,
without authority of the factor or trustees, delivered to Clark a
quantity of grain, the produce of the estate, with instructions to
sell it, which Clark accordingly did for the sum of £%56.
The trustees having brought an action against Clark for p&y-
hient of the price, he pleaded in defence that he was entitled to
impute it in extinction of a debt alleged by him to be due by
Meldrum j which formed the. subject of dispute in a multiple-
COUBT OP SESSION. 1»
poinding raised by the trustees ; or at least to retain it to answer
the dividend to which he might be entitled out of the trust-estate.
The Lord Ordinary appointed the sum sued for to be imme-
diately consigned, observing in a note, — * The defender got hold
' of the grain, for the price of which he is now pursued, as the
c property and part of the trust-estate. He must therefore pay
* it to the trustees ; and, as in other cases, if he have any claim
( against the estate, which seems doubtful, he must claim it on
4 the trust-funds/
Against this interlocutor Clark reclaimed, and contended that
he was at least entitled to deduct from the amount to be consigned
a part of the price which he had not actually recovered, and two
sums paid to the truster Meldrum and his brother. To this
it was answered for the trustees, That having intromitted with
the trust-property without authority, and particularly having sold
the grain to a person in insolvent circumstances, (as had been the
case,) be was bound to account for the full price ; and that the
alleged payments, if they had been made, were totally unauthor-
ized by the trustees. The Court unanimously adhered,
T. Walker, — A. Stevenson, W. S. — Agents.
F. Garden, Advocator and Defender.— Jeffrey — Neaves. .No. 80»
H. ATColl, Respondent and Pursuer. — More — AfGacJien.
Legmi Diligence.— A. creditor having executed a caption against bis debtor, with-
out indorsing a restriction to the balance to which the debt had been reduced
by partial payments since the date of the letters, and the messenger, who was
likewise employed as an agent to procure a settlement of the debt, having taken
his prisoner to the office of the creditor's agent, instead of directly to gaol, with-
out any application to that purpose from the prisoner, though not against hit
will, held that the creditorwras liable in damages.
M'Coll, the respondent, was debtor to the sequestrated estate Dec. 13.1826*
of Cochrane, Davidson, and Company, merchants in Glasgow, in 2d ^7s"
a joint promissory note with one Monkhouse for £4fl. On this Lord Macken-
note Garden, the trustee on the estate, charged M'Coll, and there- "e*
after raised letters of horning ; and, of date October 4. 1814, like-
wise took out letters of caption. At this period no part of the
debt was paid ; but on the 6th £12 were paid to account by Monk-
house, and on the 28th a poinding was executed of certain goods,
to the value of about i?80, in possession of Monkhouse, and the
usual warrant of sale obtained, but was not followed out, in con-
sequence of a claim raised by a third party, alleging himself the
true proprietor of the goods. In the beginning of November,
howevjsr, other partial payments were made by Monkhouse, who
124 CASES DECIDED IN THE
was in fact the principal debtor which reduced the debt to about
,£19. While matters were in this situation, Garden put the cap-
tion into the bands of a messenger, without marking any deduc-
tion of the payments to account. This messenger had previously
been employed to obtain a settlement from M'Coll, and he de-
poned (in a proof allowed in the Inferior Court) that, on going
to M'Coll's shop to execute 'the caption, he asked him * if he wad
* going to settle the debt T — and that « the pursuer M'Coll hav-
* ing answered that he was not going to settle it, the deponent
* told him, that as he had disregarded the messages the deponent
* had formerly carried to him, he was the deponent's prisoner un-
* til he made a settlement, and that he must go to the office of
« Mr. M'Dowall (Garden's agent) to make a settlement ;' and the
messenger accordingly went through the forms of apprehension.
M'Coll, however, as stated by himself in his judicial declaration,
4 did not on this occasion ask the messenger for a state of his
* claim, or tender to him any mbney in payment thereof ;' but
' as soon as the messenger told him he was his prisoner, and that
* he must go to Mr. M'Dowall's office, he rose and'took his hat,
' and readily said he would go there with him.' He accordingly
set out for M'Dowall's office, proceeding through the most unfre-
quented lanes and streets, followed at a short distance by the
messenger, and by the concurrents at such a distance, that he was
not aware of their attendance. On reaching the agent's office,
M'Coll was desired by him to pay the balance on the bill ; and
after complaining of being apprehended, notwithstanding the poind*
ing of Monkhouse's goods, he promised to pay the balance on the
Tuesday following ; on this he was liberated, having been detained
in all about a quarter of an hour. M'Coll accordingly paid up
the balance as promised by him ; but a few months thereafter he
raised an action against Garden before the Magistrates of Glas-
gow, concluding for £ 200 as damages for wrongous imprison-
ment, on the grounds,
1. That as partial payments had been made prior to the exe-
cution of the caption, and as poinding had been used of the co-
obligant's property to an extent which covered the whole balance
unpaid, it was incompetent to apprehend the pursuer at all.
£. That at all events it was incompetent to apprehend him for
the full debt without indorsing on the caption, and deducting the
partial payments made to account ; and,
8. That the messenger was not entitled to convey the pursuer
to M'Dowall's office, but was bound to have taken him at once to
gaol.
Against this action it was pleaded in defence by Garden,
COURT OF SESSION. 196
1. That being prevented by the claim of the third party alleg-
ing right to the poinded goods from proceeding to sell them, at
least without incurring the expense of a litigation, he was entitled
to go on with his personal diligence against the pursuer.
2. That, according to legal principle, a debtor is apprehended,
not for payment of any particular sum, but for disobeying the
charge, and consequently, so long as any part of the debt re-
mains unpaid, he may be legally apprehended under the letters
of caption ; and that the only purpose of furnishing the debtor
with a state of the balance due is, that by immediate payment he
may obtain liberation ; but that as a messenger is not entitled to
receive payment, there is no necessity for producing a state of the
debt till the prisoner is booked in the gaol books, where only he
can obtain liberation by payment to the gaoler, who alone is legally
authorized to receive such payment ; and that, in the case of Les-
lie v. Pringle, the debt bad been booked for the full amount, after
a partial payment had been made ; and,
8. That the pursuer was not taken to McDowell's office against
his will, but, according to his own admission, .went ' readily ;' and
that the conduct pursued by the messenger in regard to this was
much less prejudicial to the pursuer's feelings and credit, than if
he had carried him at once to gaol.
The Magistrates having awarded £50 of damages on the two
last grounds maintained by the pursuer, with expenses, Garden
brought an advocation, in which the Lord Ordinary altered the
interlocutor, so far as to find. Garden liable in £5 of damages only.
Garden, however, still reclaimed, and contended that no damages
whatever were due ; but the Court, by a majority, adhered.
Lord Justicb-Clbrk*— I do not think that the question is necessa-
rily raised, whether the execution of a caption, without deduction of
payments made subsequent to the date of the letters, be illegal, as
no imprisonment followed, and as on the other point there are suf-
ficient grounds for adhering to this interlocutor. The messenger
here, as clearly appears from his own deposition, was employed as
agent under M' Do wall to obtain a settlement ; and when the caption
was put into his hands, it was his duty, on not obtaining 'a settle-
ment, to take the prisoner to gaol, unless he expressly asked to be
taken elsewhere. The messenger at once told the prisoner that he
mtut go to the agent's office ; and this is not done away by the pri-
soner going readily. It was an illegal use of the diligence, unless
the proposition came from the man himself; and I do not care
whether it was more for the advantage of the pursuer to be taken
to the office, or to prison. Laying aside, therefore, the question as
to the caption being for more than the debt due, I agree with the
186 CASES DECIDED IN THE
Lord Ordinary that damages ought to be awarded, and that £5 is a
proper amount.
Load Alloway. — I concur entirely .in the opinion which has been
delivered ; but as the other point is one of importance, I think it
right to state my views on it also. The party here was apprehended
for £47, but at the time £19 only was due ; and the messenger
(who, it is , clear, acted also as agent) ought to hare informed the
pursuer, who was only a cautioner, and could know nothing of it,
that so much had been paid. I do not care whether the messenger
had carried him to prison or not, or whether he had him booked or
not ; it is enough that he was apprehended for the full debt when
only £19 was due. '
Lord Pitmillt. — I also agree in thinking that this point cannot be
thrown out of view. There was a great irregularity in apprehending
for the full debt, when a part only was due. There is no objection
\o putting the same caption into effect, but the partial payments
should hare been acknowledged before apprehending. The mere
fact of apprehending for a larger sum than was due was irregular ;
and some damages are necessary on that account. I also agree as
to the other point, as it appears to me that this party, did not ask to
go to the agent's office, but that the messenger told him that be
must go.
Lord Glenlee. — I rather think that the pursuer was very well
pleased to go to JNTDowaU's ; and I doubt if it would do debtors
any good, to leave the messengers no alternative but to carry them
at once to gaol. No doubt, to carry a prisoner to another place
against his will is an illegal act ; but I doubt if that was the case
here. As to the other point, there is no such thing, as arresting a
debtor for any particular sum more than another. He is arrested for
disobeying the charge. It is certainly proper, however, that he should
know immediately how much he requires to pay in order to get free ;
and it was a rash step in Garden not to give a note of the precise
amount still due. But I am not satisfied of the propriety of finding
any damages due ; although, if any are to be given, the sum awarded
by the Lord Ordinary is as moderate as possible.
Respondent'* Authority.— Leslie, Nov. 18. 1761, <F. C.)
Campbell and Macdowall, — J. Pattison Junior, W. 8. — Agents.
COURT OF SESSION*. 127
A. Oswald, Pursuer.—!). ofF. Mmcreiff*— Wilson. No. 81.
J. Patison, Defender. — Skene — Brown.
*.— Held that an arrestment juritdictionU fundand» cauaa is effectual
to constitute a jurisdiction against a native Scotchman domiciled abroad, in an
action at die instance of a Scotchman also residing abroad, and where the trans-
actions on which the action was founded arose beyond the territory of the
Court.
The pursuer Alexander Oswald was a. native of Burntisland Dec. 14. 1826.
in Scotland, but was. now settled as a merchant in Bordeaux in i„^^18
France. The defender Patison was a native of Leith, but was Lord Meadow.
settled as a merchant in Charlestown, America. These two bank-
parties having had several commercial transactions, on which
Oswald alleged that a balance had arisen in his favour, and hav-
ing learned that Patison had funds in this country, he caused
them to be arrested, jurisdictionis f undandse causa ; and thereupon
raised an action in this Court, concluding for the balance, and
on the dependence of which he raised and executed arrestments
ad effectum.
In defence Patison maintained, that as both parties were do-
miciled abroad, and as all the transactions on which the action was
founded had taken place in France and America, and as all the
necessary evidence of their mutual claims was in these countries,
this Court had no jurisdiction to entertain the action.
To this it was answered,
1. That the defender being a Scotchman, and the Court of
Session being the commune forum for all native Scotchmen
abroad, even although residing there animo remanendi, the action
was perfectly competent ; and,
2. That at all events, and even supposing the defender were
to be regarded as a foreigner, still a proper jurisdiction had been
constituted by the arrestment.
The Court, on the report of the Lord Ordinary, and also of
Lord Probationer Newton, sustained the jurisdiction, and remit-
ted to the Lord Ordinary to proceed accordingly.
Loan Probationer. — In general the jurisdiction of a Court depends
on the defender being within its territory. In regard to a pursuer,
a jurisdiction exists over him by the circumstance of his coming to
the Court, and demanding justice from it. Independent of every
other circumstance, however, there is here an arrestment jurisdic-
tiflenis fundaadse causa— * process which we have adopted from the
Continent. It may be extremely doubtful, however, whether the
jurisdiction thereby constituted can extend further than over the
funds arrested. But it is sufficient to constitute such a jurisdiction,
as to compel the defender to come here, and defend the fund so ar-
rested. The jurisdiction ought therefore to be sustained.
VOL. V. I
138 CASES DEetDED IN THE
The Judges were unanimously of opinion that the objection to the
jurisdiction ought to be repelled.
Pursuer's Authorities — \. Ersk. S. 19; Galbraith, Nov. 16. 1696,(9013); Blan-
tyre, Dec. 8. 1626, (4813); 2. Voet. 4. 93; Young, Dec. 1683, (4833); Erna,
Dec. 1610, (4833); Ford, Nov. 91. 1768, (4835); Ashton and Co. June 1773,
(4835.)
Defender* * Authorities.— Brog, March 26. 1639, (4816); Bromley, Feb. 1682,
(4817) ; Scott, Dec. 9. 1797, (4845.)
H. Sibbald, W. S«— J. Patison, W. S. — Agents.
No. 82* J. Kyle, Pursuer.—- D. qfF. Moncreffi—ChrisHson.
D. Kyle, Defender. — Sol-Gen. Hope—Boswell.
Interdiction— Sale.— Held that a sale of a property by an interdicted party to one
of his interdictory for an onerous and rational cause, is effectual.
Dec. |4. 1826. The late Robert Kyle of Davidshill had a brother, William
, _ Kyle of Lynn. Robert was married, but had no family. William
1st Division. j . J . ■■ n i_. « • i_i_ja xL
Lord Medwyn. w*9 twice married. By his first marriage he had two sons, — the
s. pursuer John Kyle (who was the eldest,) and William Kyle ju-
nior ; and by his second marriage he had a son David, die de-
fender.
Four years prior to this deed, viz. on 15th March 1800, Robert
Kyle, on the narrative of his being of a very facile and pliable
disposition, executed a bond of interdiction in favour of William
Kyle of Lynn, and two other parties as his interdictors, which
was published and registered on the 20th of that month, and the
1st of April following. Immediately thereafter an action of re-
duction, on the ground of facility and lesion, was brought in naine
of Robert Kyle and his interdictors, of a lease which he had
granted in 1789 in favour of one Kerr for three 19 years, renew-
able from time to time on payment of a small grassum, and of a
rent of £14 for the first nine years, and of -£15 for the remain-
ing period ; and the Court, on advising a proof, sustained the
tack for nineteen years at the above rent, but reduced it quoad'
ultra.
Soon thereafter, viz. on the 90th of July 1804, Robert Kyle
executed a disposition of Davidshill in favour of William Kyle
of Lynn, and his second son William junior, in joint fee and
liferent, and to the survivor in fee ; whom failing, die eldest son
of the second marriage. The disposition narrated, that it had
been granted ' in consideration of the said William Kyle having
€ paid thq debts due by me preceding the term of Whitsunday
' last, and of the annuity after mentioned to be paid by them to
' ipe and my wife, and for payment of which I have received an
COURT OF SESSION. 129
* heritable bond of annuity from the said William Kyle for him*
' self, and as acting for his said son ;' and it also stated that it
had been granted for love and favour. The annuity alluded to
was of J! 20 in favour of Robert Kyle and his wife, payable out
of the lands of Davidshill till Whitsunday 1809, and thereafter
,£30 daring their lives. Sasine was taken on these respective
deeds, and duly recorded.
About the same time William Kyle granted a disposition mor-
tis causd of his lands of Lynn, and also of his whole means and
effects, to hi6 eldest son, the pursuer, subject to considerable bur-
dens in favour of the other members of his family, with the ex-
ceptkm of bis second son William ; and in virtue of this deed, the
pursuer, on the deatb of his father, (which happened very soon
thereafter,) made up titles to Lynn, entered to possession, and
intromittad with the whole of the personal estate.
On the death of William Kyle, his second son William entered
to possession of Davidshill, and paid the annuity till 1810, when
Robert Kyle died ; and he continued to do so to his widow till
his own death in 1816. The defender David Kyle then made up
titles as heir of provision to the lands of Davidshill, and entered
to possession. In 1821 , the pursuer, as the heir at law of Robert
Kyle, brought an action of reduction of the disposition executed-
by him in 1804, on the head of deathbed, ex capite interdic-
tions*) and facility and fraud.
Lord Eldin, on advising a proof as to the plea of deathbed,
reduced and decerned in terms of the libel ; but the Court alter-
ed, repelled that plea, and, before further answer, * remitted to
' the Lord Ordinary to receive a condescendence of the facts which
* are averred and offered to be proved respecting the onerosity
« of the deed.'*
In support of his allegation of onerosity, the defender stated
that Robert Kyle having, prior to 1800, contracted considerable
debts, and the lease being a most injurious transaction for him,
William Kyle of Lynn had agreed to pay these debts, and also
the expenses of the reduction of the lease, and to grant an heritable
bond of annuity to him and his wife and the survivor for £20, to
be increased to £20 in the event of the lease being reduced : —
that, with the view of raising this action, it had been considered
expedient that Robert should grant the bond of interdiction, jo
that the action might be pursued by him and his mterdictors : —
that William had paid the debts to the extent of upwards of
.£200, and the whole expenses of the action ; and that he and the
UK ■ i i ■ ^ ■ i ii I ■ >■-■■■ iii i i » n ^-
• 0«e ante, Vol. III. No. 463.
l2
180 CASES DECIDED IN THE
other disponees had regularly paid the stipulated annuity. He
further stated, that the disposition of Lynn to the pursuer, and
the whole personal effects, had been made on the faith of the va-
lidity of the disposition of Davidshill hi favour of William, the
second son, and that both were regarded as forming one general
family settlement. He therefore contended,
1. That as the value of the estate in 1804 did not exceed the
amount of, these advances and the worth of the annuity, the dis-
position which was subsequently executed in 1804 was onerous
and rational, and therefore that the objection of its having been
granted in favour of an interdictor was not well founded ; and,
2. That the pursuer was barred, in the circumstances, from ob-
jecting to it.
On the other- hand, it was denied by the pursuer that any such
agreement had been made prior to the interdiction ; that any evi-
dence of it had been produced, or of the alleged advances ; or
that, even supposing they had been made, that they were at all
adequate to the value of the estate; or that there was any intend
tion that the disposition of Davidshill should be the consideration
of that of Lynn in his favour. He therefore contended*
That as it was admitted that his father William had been con-
stituted an interdictor in 1800, and the deed in question had been
granted to him by the interdicted party in 1804, he stood in a
situation which rendered apy such deed illegal, even although it
bad been granted for an onerous cause ; and that, as no onerosity
had been proved, it was a fortiori objectionable*
The Lord Ordinary reported the question on Cases; and the
Court, in respect that the transaction was both rational and one-
rous, assoilzied the defender, and found expenses due.
. Loan Balgray*— The decision of this case depends on whether the
transaction was onerous and rational. The circumstance of a party
being under interdiction does not prevent him from selling his pro-
perty, provided it be dooe for a proper and onerous cause. The pur-
pose of the interdiction is to protect him against being entrapped
into gratuitous obligations. In this case the interdiction appears to
have been executed for the purpose of reducing the lease, by which,
in effect, Robert Kyle was deprived of his property; and his brother
William, with the approbation of all the friends, appears to have
stepped forward with the view to secure this property to the family.
He paid Robert's debts, the expenses of the action, and granted a
bond of annuity ; and therefore being, in my opinion, both a rational
and onerous transaction, I think it ought to be sustained.
Lord Craigie. — There is a great deal of statement on the one side,
and contradiction on the other; but I think we bare sufficient ma-
COURT OP SESSION. 131
to decide this cue; and I have arrived at the same conclusion
as Lent BeJgrmy. The existence of the previous agreement is not
distinctly denied ; hat it is merely said that there is no evidence
of it. Perhaps it was not reduced to writing ; but we see that
William acted on the faith of it, and paid various debts, and the ex-
penses of the action of reduction, and bound himself to pay a spe-
cific annuity ; so that there was a clear rei interventus.
Loan Gllliss.— I have considerable difficulty in this case. I do not
think that there was any actual fraud ; and I am disposed to believe
that the transaction was a beneficial and proper one, on the supposi-
tion that the defender s statements are correct. But the most ma-
terial of them are pointedly denied. Such being the case, and the
net being undoubted that this was a sale by an interdicted party
to one of his interdictory I think we cannot support \t until we
hare die matter cleared up by a proof.
Lobd Pmsidentv- -There is certainly great hazard in countenancing
amy deed executed by a party under interdiction in favour of an in-
tetdietor ; and in all cases the latter must show clear onerosity and
rationality. This, I think, has been made out in the present case.
Partner* g Authority. — 1. Erek. 7. 58.
Defender^ Authoritiet.—\. Er»k. 7- 58 j Dingwall, July 12. 1749, (7U2.)
Macmillan and Grant, W. S— W. Patrick, W. S.— Agents.
Rev. Dr; Davidson, Petitioner. — Brown. No. 83.
T. Falconer, Respondent.— Keay—J. W. Dickson.
r#»— The creditors of a tenant sequestrated under
the Baakront Act having agreed .that the landlord should have a preference over
the proceed! of the effects hypothecated to him for his rent on allowing them
to dispose of them, and it being alleged that sufficient funds had been realized,
hot had been paid away by the trustee — Held that it was competent to enforce
such a eUam by a summary complaint, and that the successor of a trustee is liable
for tfce ebtigstion* of his predecessor ; but a remit made to ascertain the fact
- whether there were free proceeds.
Dr. Davidson having obtained a warrant of sequestration of Dec. 14. 1826.
the crop and effects of his tenant Duncan Weir in security of lBT dIVi«,0w.
the rent of the year 1821, and also a decree of removing, applied Lord Meiiwyn.
to the Sheriff to appoint a factor to reap and ingathcr the crop ; D.
and a Mr. Boog was named accordingly. In the mean while a
sequestration of the estates of Weir under the Bankrupt Act had
bees awarded, and Walter Falconer was appointed trustee.
Thereafter, on the 29th of August 1821, Mr. Patison, agent for
the trustee, addressed this letter to Dr. Davidson's factor:—' I
< am deared bj Waller Falconer, trustee confirmed on the se-
' questrated estate of Duncan Weir, to request from you a state
132
CASES DECIDED IN THE
< of the rents due to the Rev. D*» Davidson for the Amw and
< lime works of East Camp, that when the same is adjusted, they
' may be paid from the first proceeds of the estate.
' On your agreeing to drop all further procedure in the process
you have lately raised before the Sheriff, for the purpose of
having a judicial factor appointed, and allowing the trustee to
go on and manage the crop, ire, it shall be understood that your
doing so shall not at all affect the rights of Dr* Davidson pre-
sently existing, but that the same shall remain entire.* To this
the following answer was immediately returned : — ' Mr. George
Brown, Fountainbridge, has just now been here with a letter
from you to him, from which it appears that you, as law-agent
and acting for Mr. Walter Falconer, the trustee, on Duncan
Weir's estate, offer terms of arrangement regarding .the manage-
ment of the crop on the farm of Hyndlaw, on this management
being allowed to remain in Mr* Falconer, in regard to his cut-
ting down and ingathering the crop, &e«, on Mr. Browrfs agree-
ing, on the part- of Dr. Davidson, to drop all further procedure
in the application to the Sheriff for having Mr. Boog intrusted
with the management of this crop, it being understood that his
doing so shall not at all affect the rights of Dr. Davidson pre-
sently existing, but that the same shall remain entire.
' On the part of Dr. Davidson, I hereby pass from and withdraw
the application to the Sheriff for having Mr. Boog intrusted with
the management of the crop, reserving always entire to Dr. David-
son all his existing claims of preference on said crop, which shall,
by his doing so, not be affected thereby.9 In consequence of
this agreement, the trustee reported to a meeting of the creditors,
That he had effected an arrangement with Mr. Brown, factor
for Dr. Davidson, and that in consequence he had been allqwed
to ingather the crop on the bankrupt's farm ; that he had ac-
cordingly done so, and that the whole corn crop, with the ex-
ception of five and a half acres of barley, had been got in, in
good condition ;' and at a subsequent meeting he was authorized
to sell the stock by public roup, which he accordingly did; and he
afterwards reported that he had realized the proceeds, amount-
ing to £265. Dr. Davidson, in the interim, had lodged a cjaim
for a preference of i?£15 ; but it appeared that the trustee had
incurred law expenses and other charges which almost exhausted
the funds. He died in May 1823, and his brother Thomas was
then elected in his place.
Dr. Davidson having, been unable to recover payment pf his
claim, presented a petition and complaint, praying, inter aha, that
Thomas Falconer, the trustee, should be prdaiged.t* lodge «
COUR? OV SESSION. %1S8
Mate at iris accounts, and further, and at all event*, * to make
K payment to the petitioner of the mm of £216: 11 : 9, being the
' amount of the debt admitted to be preferable, with interest from
* the time it ought to have been pad out of the first proceeds of
•the estate.'
To this demand it was answered,
1. That as the transaction took place with a former trustee who
had intromitted with the funds, and the respondent did not re-
present him, and as free fund* had not been recovered, he could
not be made responsible for the debt \ and,
% That, from the nature of the daim, it resolved into an ordi-
nary claim of debt, and therefore it was not competent to consti-
tute it against the respondent in the form of a summary petition
tod complaint.
On the other hand H was maintained,
1. That as the former trustee represented the creditors, for
whose behalf the transaction was made, and the respondent stood
in the saqae situation, Dr. Davidson was entitled to enforce the
obligation against him ; and as funds had been realised to the full
amount of the debt, he was bound to make them forthcoming ;
and,
2. That as he had claimed as a creditor, and the trustee was
at all times amenable to the Court by summary complaint for
his conduct, Dr. Davidson was entitled to complain of it in this
shape, in order to have him ordained to pay to him the amount
of his claim.
The Lord Ordinary found, * That the petitioner, the landlord,
' sequestrated the effects of his tenant Duncan Weir for the ar-
* rears of rent 1820, as also in security for his current rent 1821,
c prior to his sequestration under the Bankrupt Act on 5th July
'18&1: — that on the application of the landlord, the Sheriff,
' on 68th August, authorised a neutral person to reap and in-
* gather the crop, subject to the orders of Court : — that next day
* a proposal is made on behalf of the trustee for the creditors of
c Weir, which was agreed to by the petitioner, that he should de-
' sist from all further proceedings before the Sheriff, and allow
' the trustee to manage the crop, on condition that the petitioner's
' right should remain entire, and that his preferable claim should
' be paid from the first proceeds of the estate : — that the peti-
1 timer's preferable claim against Weir's estate amounted to £9\ 5.
' lis. 3d., and that it appears from the roup-roll of the crop and
* stocking, as well as from other sums recovered for the estate,
1 that the trustee recovered what was sufficient to have discharged
* the petitioner's debt, but no payment whatever was made to
184
CASES DECIDED IN THE
him :— that it is stated on the part of the respondent, that the
sums received by the former trustee were paid away to other
creditors, by vote of the^creditors : Finds, under these circum-
stances, that the petitioner has a claim against the creditors for
the amount of the preferable debt due to him, with interest
from the date the said rent was payable, and that he cannot be
cut out of this claim by the death of the former trustee, and
the election of a new one; for his claim was not a personal claim
against the trustee individually, but lay against the trustee as
representing the creditors : Therefore decerns against the re-
spondent, as the trustee on the estate, for the sum of £915. lis.
3d., with interest as above; but supersedes extract till the first
sederunt day in November next, that in the mean time the re-
spondent may call a meeting of the creditors, and lay before
them this interlocutor, and call upon them to provide funds for
enabling him to meet the decerniture in favour of the peti-
tioner/
Falconer having reclaimed, the Court ' recalled the interlocu-
tor complained of, and remitted to his Lordship to ascertain the
amount of the expenses attending the sale of Duncan Weirs
effects falling under the sequestration before the Sheriff, with
any other deductions competent to be made from the petitioner's
claim, and thereupon to do as his Lordship shall see cause.9
The Court were in general of opinion, that as the former trustee re-
presented the creditors, whereby they were bound to pay the claim
of Dr. Davidson out of the first free proceeds, and as the present
trustee stood in his place, he was bound to implement the obligation,
and that the petition was quite competent ; but that the Lord Or-
dinary ought, in the first place, to have ordered the accounts to
have been produced, to see whether there were any free proceeds.
M. Patmon,— Scott, Finlay, and Baldsrstok, W. S.— Agents.
COUBT OF, SESSION. 185
R. Aitkkn and Others, Pursuers and Defenders.— Cockburn — No. 84.
Skene.
Trustees of Shotts and Airdrik Road, Defenders.— Jinrdin*.
Magistrates of Glasgow, Defenders and Pursuers. — D. qfF.
Moncreiff—Mcmteith.
R—d AeU— €¥£*.— Road trustees having right to manage, &c. a road from a cer-
tain point to ' the city of Glasgow,1 held entitled to maintain toll-bars within the
bounds of the royalty, if beyond the buildings constituting the actual city.
In this case there were counter actions of declarator to have it Dec. 14. 1826.
determined whether, under certain acts of Parliament which gave 2d plvI8IOBI.
the trustee* of the Shotts and Airdrie road right to manage the Ld. Cringictie.
* road from Livingstone by the kirk of Shotts to the city of Glas- ?•
* gow,' they were entitled to place toll-bara within the royalty of the
city, though beyond the actual buildings, or whether their powers
were limited by the boundary of the royalty.
The Lord Ordinary and the Court, on a consideration of the
various road acts, being of opinion that the road was intended to
be under the management of the trustees until it reached the
buildings constituting the actual city, decerned in the declarators
to that effect
D. and A, Thomson, W. S. — J. G. Hopkirk, W. S. — W. Dickson,
W. S,— Agents.
W. Guthrte, Pursuer.— Maitland—J. ATNeiU. No. 85.
P. M'Eachkrx, Defender. — Cuninghame — GUHes.
Agent and Client. — In an action at the instance of Guthrie, Dec. 14. 1826.
writer in Edinburgh, against M'Eachern, for payment of a 2d d,vi8iow.
business account amounting to «£27, alleged to have been incurred Lord Macken-
by him in travelling to Inverary, and attending a meeting of ac-
creditors, on the employment of M'Eachern, the Lord Ordi- Fa
nary decerned against the latter for payment of <£10, to which
his Lordship modified the account, without remitting it to the
auditor. M'Eachern acquiesced in this judgment. Guthrie
however reclaimed, and contended that the auditor was the proper
officer for modifying agents' accounts sued for, and that the Lord
Ordinary was not entitled to do so without remitting to him. But
the Court, being satisfied that if Guthrie had been employed at
all to do the duty charged, it was not by M'Eachern, and that
had the latter reclaimed, he would have been entitled to absolvi-
tor, refused Guthrie's petition.
Party, — J. Thorburn, — Agents.
186 CASES DECIDED IN THE
No. 86. J. Lawson, Advocator. — W. Bell.
J. Waedeop, Reippoudenu-^Jeffrey— Donald.
Dec. 15. 1826. This was a question as to whether the advocator was the father
1st Division. °f a natura^ c^^ borne by the respondent. The Justices found
Lord Meadow- circumstances proved sufficient to allow the respondents oath in
*"*' suppement, and the Lord Ordinary and the Court adhered.
Sa
Anderson and Whitehead, W. S. — J. Gemmell, — Agents.
No. 87» M*8- Lockhaet and Others, Pursuers.— J), qf F.
M'NeiU.
Sir C. TaoTTxm and Others, Trustees of Colin M'Kekkis,
Defenders.— Sol-Gen. Hope— Skene.
„ W. Ross and H. Anderson, Defenders. — Forsyth— Mmtland.
Tutor and PupU—Rstitf.—Udd that a discharge of an heritable bond, granted by
persons in the capacity of tutors after their office had expired, vaa null and
void, and that they were bound to relieve the parties to whom the discharge had
"been granted of all the consequence* thereof.
Dec. 15. 1826. The late Charles Lockhart, Esq. left three daughters, Hen-
1st Division **etta, Ann, and Jean,-«4he two former of whom we»e twins, and
Lord Medwyn. were ^}OTn *n June 1802. • On the Sd of June 1808, a gift of tu-
H. tory dative was issued by the Barons of Exchequer, appointing
Walter Boss, Charles Gordon Urquhart, William Anderson,
William Henry Anderson, and others, * tutores dativos et ad*
' imnistratores diet. Henrietta Lockhart, Anns Lockhart, et
* Jeannss Lockhart, duran. toto spatio annisque earum respec-
' tivarum pupillaritatum, ullis tribus eorutn, in vicecomitatu de
' Ross residen. lie a quorum existen. pro administratione,' &c
These tutors accordingly entered on the office, and in 1810 they
lent .£3000, belonging to the pupils, to the late David Urquhart,
for which he granted an heritable bond over his estate of Brae-
langwell, by which he bound himself to pay that sum * to the
* said Henrietta Lockhart, Ann. Lockhart, and Jean Lockhart,
« their heirs, &c, or to their said tutors above named and designed,
* or their quorum/ &c. On this deed infeftment was taken ; and
thereafter Miss Jean Lockhart having died in pupillarity, her
two sisters madfe up titles to her share of the bond*
Urquhart having died, and his apparent heir having raised an
action of ranking and sale of his estate against his creditors, the
tutors of Misses Lockhart produced the heritable bond and sa-
sine as their interest ; and part of the property having been pur-
COURT OF SESSION- 187
chased by Sir Coutts Trotter and others, as trustees of the late
Colin M'Kenxie, merchant, London , they were ordained by an
interim order of ranking and scheme of division, dated the 15th
of June 1815, to pay to the Misses Lockhart, or their tutors, the
debt of £3000, with interest. The Misses Lockhart, however,
bad attained the age of twelve years complete in the month of
June preceding. Sir Coutts Trotter and others, the trustees of
Mr. M'Senaie, being ignorant of this, intimated to the agent
for the tutors their intention to pay the money. In consequence
of this, a discharge, disposition, and assignation in the names of
the acting tutors, was executed by two of them, Walter Ross and
William Anderson, in that capacity,, bearing date the 25th and
30th of August 1815. By that deed they acknowledged receipt
of the money, being £3718, discharged the estate of the burden,
and granted a clause of warrandice iq these terms :— •« And we
* hereby bind and oblige the said Henrietta Lockhart and Ann
' Lockhart, their heirs, executors, and successors whatsoever, to
* warrant the foresaid discharge, disposition, and assignation, to
c the extent of the sums now paid to us, against all facts and deeds
* done or to be done by us or them, and their foresaids, in virtue of
c the said heritable bond and infeftment thereon, which are hereby
* completely extinguished for ever.'
In the mean while another part of the estate of BraelangweU
bad been purchased by Mr. Donald M'Kencie ; and before the
money was paid by the trustees of Colin M'Kenzie, an arrange*
ment was entered into with Ross and others, acting as tutors of
the Misses Lockhart, by which it was agreed that the money
abould be lent to Donald M'Kenzie on the security of the lands
eo purchased by bun. The same agents acted for the trustees of
Colin M'Kenzie and for Donald M'Kenzie ; and the money was
paid by them, on receiving the discharge, into the account of
Ponakd M'Kensie with the British Linen Company, by whom it
was applied in extinction pro tanto of a large debt due by him to
them. An heritable bond was then granted by Donald M'Kepzie
over the lands ; but it eventually proved unavailing. The Misses
Lockhart, after having married, brought an action of reduction
of the discharge, disposition, and assignation granted by Ross
and Anderson as their tutors, and concluding that the trustees of
Colin M'Kenaie should be ordained to deliver to them the ori-
ginal heritable bond and sarioe; and also to have it declared that
the ' sums of money therein contained are, and must continue to
* be, a real burden and effectual security affecting the whole lands
' and others contained in the said heritable bond and other writ-
y fogs* or at lease afferttng that part, of the lands therein con-
148 CASES DECIDED IN THE
* tained, which was acquired - by the trustees of the said Colin
< M'Xenzie ;' and that they should be ordained to pay to them
the principal sum therein contained, and the interest thereof.
The trustees of Colin M'Kenzie then brought an action of relief
against Messrs. Ross and Anderson, by whom the discharge had
been granted, which was conjoined with the reduction and de-
clarator.
In support of their action, the pursuers of the reduction main-
tained various pleas ; but, in particular,
1. That as the deed was subscribed by Messrs. Ross and An-
derson in the capacity of tutors, after the pursuers were out of
pupillarity, and the office had expired, it was utterly inept and
ineffectual ; and,
% That at all events, as it was signed only by two tutors,
whereas three constituted a quorum, it was not binding upon
them.
To this it was answered by the trustees of Colin M'Kenzie,
1. That in transacting with these tutors, they had acted on
the faith that they were entitled to grant the discharge ; and as
they had done so through the intervention of their accredited
agent, whose authority had not been recalled by the pursuers,
they were bound by his acts, and those of the party for whose
behalf he transacted ; and,
2. That a duplicate of the discharge had been granted by
three'of the tutors.
In regard to the claim of relief against Ross and Anderson,
the trustees of Colin M'Kenzie maintained,
1. That as it was their duty to have ascertained that the pupils
had attained twelve years of age, and to have known that their
office was expired, and as .they had received the money from
them, they were bound to grant them relief; and,
2. That they were further bound to do so in terms of their
obligation of relief.
To this it was answered,
1. That the loss of the money was imputable to the agents of
Colin M'Kenzie's trustees, for whom they were responsible, by
paying the money into the British Linen Bank without the con-
sent of the tutors, and therefore they ought to seek their relief
against these agents, and not against the tutors ; and,
2. That as the deed was merely signed by two of the tutors,
it was ex facie null and void, and the trustees were therefore not
justifiable in paying away the money in the way in which they
had done.
The Court, on the report of the Lord Ordinary, reduced the
COURT OF SESSION. 189
discharge, decerned in terms of the conclusion of the pursuers5
libel, and also in the action of relief at the instance of the trus-
tees of Colin M'Eenzie.
The Judges were unanimously of opinion, in relation to the action of
reduction, that as the discharge had been granted by persons acting
as tutors after their office had come to an end, it was utterly inef-
fectual. With regard to the question of relief,
Lord Balghay observed, that the claim was founded on a written
obligation that the persons acting as tutors had, in consideration of
receiving a sum of money, delivered a discharge, which, independ- '
ent of any stipulation, they were bound to warrant as good and effec-
tual ; and that, as the discharge had been found null and void, these
parties must restore the money.
Lord Craigie.— The claim of relief is clear, unless the defenders can
make out an exception, by attaching blame to the agents of the par-
ties demanding relief* This, however, has not been made out*
Lord. Gillies. — The trustees of Colin M'Kenzie purchased part of
the estate over which the heritable bond was granted, and they were
ordained to pay the price to those having right to receive it. They
accordingly paid it to persons representing themselves as tutors, but
who in point of met were not so. The discharge was therefore good
for nothing ; and accordingly it has been reduced. The trustees now
claim relief from those who so represented themselves as tutors, and
granted the discharge ; and that right is unquestionable, unless the
defenders can make out a case of actual fraud, which however is not
alleged.
Lord President. — These parties, acting as tutors, agreed that the
money should be lent to Donald M 'Kenzie. It was accordingly paid
to him ; and it is no matter what he or those acting for him did with
it. It is sufficient that they granted this discharge, which they are
bound to warrant.
Mackenzie and Sharps, W. S. — W. M'Kenzie, W. S. — Patkrson
and Law, W. S. — Agents.
J. Sharps, Pursuer. — Skene. No. 88.
D. M'Gown, Defender.— D. tfF. Moncreiff.
Process — Reclaiming Note. — A reclaiming note having been Dec 15. 1826.
presented by IVTGown, merely stating that the interlocutor was \„'in^
submitted to review without any special prayer, the Court at Lord Eldin.
first refused to receive itp'but on the Dean of Faculty explaining
that, in consequence of the Second Division having in several
instances objected to prayers in reclaiming notes, he had struck
out the prayer in the present one, their Lordships ordered it to
the roll.
son.
B.
140 CASES DECIDED IN THE
The LbRD ^RflsiDEirf observed, tbat the construction which was put*
on the statute by the Second Division appeared to him not to be
correct ; and tbat it was indispensably necessary tbat there should
be a prayer, in order that the Court might see what it was that the
• party demanded* As, however, there appeared to be a misunder-
standing on this subject, the case should be sent to the roll.
T. Baillie,— W, Hunt, W. S— Agents.
No. 89* J. Hamilton, W. S.f Cautioner in Advocation.— D. ofF. Afon-
creiff—Monteiih. •
M'Gilf and Shibra, Respondents. — Jameson— A. Wood.
Procew—Decr^tf.— No objection to a decree in an action against a company, that
it was pronounced after the sequestration of the company, and the death of the
sole partner, without being transferred against the creditors or representatives,
notice having been given to the former, who declined to appear.
Dec. 15. 1826. This was a special case, in which the Lord Ordinary had de-
an Division. cerned against C. and A. Hamilton and Company, advocators
Lord Robert* of a process from the Magistrates of Glasgow, for payment of a
certain sum. The Court adhered, on a petition by Mr. Hamil-
ton, W. S», the cautioner in the advocation, repelling an objection
taken by him to the Lord Ordinary's judgment, that it was null
and void in consequence of the previous sequestration of the com-
pany, and death of the only partner of it, without the creditors
or representatives having been made parties, seeing that due in-
timation had been given to the trustee and creditors, who resolved
not to oppose the action.
Pabtt, — D. Brown, W. S. — Agents.
No. 90. Captain J. Rsin, Pursuer.— D, qfF. Moncrctf^MarahalL
J. Walker, Defemler.— J/*rnjy-^-2facftan<m.
Et & contra.
Submit8ioi>—D(mee-4rtotral*-^\rcamBtaiicea in which it waa held,-— 1.— That a
decree-arbitral could not in part be sustained, and in part set aside ;— -2.— That
an ex parte explanation by the arbiter, after pronouncing his award, is ineffec-
tual ;— 3.— That a reference forming part of an agreement did not fall by the
decree pronounced being inept ; but,— 4.— -That the referee chosen may, by baa
conduct, disqualify himself from again deciding..
Dec. 15. 1826. Captain Reid was tenant of the farm of Invericbney under
a lease which bound him to pay a rent of i?84*and 36 bolls of
Lord Macken. oatmeal, and provided that he should be entitle^, at the end of
",e- the lease, to his meliorations on the houses to an extent not ex-
M'K.
COUBT OF SE8SION. 141
ceeding J&1BQ, besides the \alue of the timber of the roofs, and
the machinery of the thrashing and meal mills to be erected by
him. Fart of this farm Captain Reid subset to Walker in 1819,
for the whole period of the principal lease, by missives which sti-
pulated .£190 of rent, and communicated to Walker a right to
the claim for meliorations at the end of the lease to the extent of
one half. Before, however, entering into possession, Walker hav-
ing oonplnfted that the rent was too high, the parties submitted
the matter to a person mutually chosen, who .fixed the rent at
^150 for the first, and £115 for future crops ; and ordained
Walker, at his entry, to pay to Captain Reid the value of the
houses on the farm, at a valuation by men to be mutually chosen.
The houses were accordingly valued at «£199, which sum Walker
paid to Captain Reid. After possessing the farm for two years,
he became convinced that the rent was still greatly beyond what
he could afford to pay, and he proposed to give up the lease.
Captain Reid having consented to this on condition of receiving
payment of damages, the parties entered into an agreement to
that effect, containing a reference to Mr. Wilson, the landlord's
factor, in these terms :-*-*' I the said Captain Reid hereby refer
* the amount of damages sustained by me in consequence of the
' agreement entered into, as before narrated, to the amicable de-<
' riskm of George Wilson, Esq. ; and I the said John Walker
' also agree, and hereby refer the same to his decision/
Under this reference Captain Reid stated his claim of damage?
in a memorial under separate heads, and among them was one
item far the value of certain houses erected on the farm for the
accommodation of his own family, in consequence of Walker ob-
taining possession of the house and offices already on the farm.
The award of the arbiter was as follows : — ( In consequence of a
* reference to me by Captain James Reid in Nether Inverichney,
' and Mr. John Walker in Upper Inverichney, regarding certain
' claims made by the former against the latter, as contained in a
« memorial dated the 28th November last, find and decern the
* said John Walker liable in damages to the said Captain James
c Reid to the extent of eighty guineas, payable on the 1st of
( June next : Also find the said John Walker liable to the said
4 Captain James Reid far the value of the houses as at his entry
( thereto; .allowing him, however, repayment of any sum that he
6 may have paid in the name of meliorations. On the other hand,
' find the said Captain James Reid liable to take off the crop of
* wheat presently growing on the possession, At a valuation to be.
' put thereon by two men to be mutually chosen, betwixt and
' die middle of June next ; and further find the said Captain
142 CASES DECIDED IN THE
* James Reid liable for i?lft: 15: 10 sterling, as the value of
' ploughing and break-furrowing performed by the said John
< Walker.'
The parties having differed as to the meaning of this award,
particularly as to the second finding, Mr. Wilson, on an applica-
tion to him by Walker's agent, wrote a letter in answer, stating
that his meaning was, ' that John Walker is accountable to Cap-
' tain Reid for any deterioration, if any, of the value of the houses
' on the possession since his entry thereto, and this to be~ascer-
* tained by a new appraisement, which I then recommended to be
' made as soon as possible, John Walker being always entitled to
* repayment of the sum paid by him to Captain Reid, and stated
' by the former at i?195, minus pejoration, that might eventually
''be found due, after having the houses valued anew, as recom-
' mended by me.' In the mean time, however, Captain Reid had
raised the present action, concluding alternatively for damages, on
the assumption that the award was not binding, or, in the' event
of its being held an effectual decree, for payment of the two sums
awarded by the first and second, findings of the decree ; and, on
the other hand, Walker raised an actidn for implement of the
award in his favour, as explained by the arbiter's subsequent let-
ter. • These actions were conjoined; and, besides certain objec-
tions to the form of the decree, Captain Reid contended* >
1. That it was null, as not exhausting ; the matter .submitted,
vie. the claim of damages at his instance, in so far as it awarded
no damages in regard to the houses which he had been obliged to
erect to accommodate his family, in consequence of the lease . to
Walker, and had not fixed the exact amount to be paid by Wal-
ker in respect of the houses mentioned in the second finding ; and
also in so far as the value of the crop of wheat to fdrm a deduc-
tion from the damages was left to be determined by a future ap-
pointment of arbiters ; — and,
£. That at all events the ex parte explanation by the arbiter,
after pronouncing his award, was totally ineffectual.
To this it was answered,
. 1. That the first finding in the award completely exhausted the
claim of damages at the instance of Captain Reid, which was the
sole object of the reference, and must be held to have included every
separate claim which he could demand in nomine damni ; and that
the remaining points decided by the arbiter were beyond the
limits of the submission, as. being either claims on the* part of
Walker, or claims properly of debt, and not of damage, on the
part of Reid,' as was that determined in the second finding as to
the houses; and consequently that the first finding of dataages,
v COURT OF SESSION. 143
which was intra fines compromise, and exhausted the only sub-
jeet of. it, could not be rendered ineffectual by the. subsequent
part of the award, which was ultra vires of the arbiter ; and,
2. That the explanation by the arbiter had been obtained at
the desire of both parties ; (but of this averment there was no
evidence.)
The Lord Ordinary found, < That the decree-arbitral libelled
* is void, except in so far as it Aires the amount of damages due
' by John Walker to Captain Beid at eighty guineas ; to which
' extent it appears to the Lord Ordinary that no valid objection
* has been stated against the same.'
Against this interlocutor Captain Reid presented a petition,
praying to be allowed a proof of his damage at large, either by
commission, or by a remit to the Jury Court ; but, on hearing
the opinions of the Court at advising, he consented to name new
referees, to whom the cause might be remitted.
The Court recalled the interlocutor of the Lord Ordinary, ' in
* respect the award cannot be in part sustained and in part reject-
*ed; and both parties now declaring their willingness jto name
' referees for carrying into effect the agreement and .reference be-
* tween them, remitted to the Lord Ordinary to proceed accord-
4 ingly ;' and to this judgment their Lordships adhered, on a re-
claiming petition by Walker, ' in respect the interlocutor only
4 applies to the award in this case.9
Lobd Glenlbb*— I have considerable doubts, of the possibility of se-
parating this decree into parts, sustaining the one and reducing
the other. I can conceive, where the matters are not mixed) that
decrees-arbitral may be set aside so far as ultra vires^ and supported
so far as intra vires ; but that will not apply here* Surely the state
of the bouses was a principal article. of damage, and the decree as to
them is necessarily mixed with the other matters ; and if the decree,
so far as intra vires, is indirectly influenced by that on the matter
uhta vires, it must be set aside altogether.
Lord Pit m illy. — I agree so far with the opinion delivered ; but I
think all the points may still be decided by the arbiter. He has
only fixed one part of the damages, and that is right enough. As to
the houses, we cannot take the explanation into view, which is, be*
sides, contradictory of the award. In regard to the two other articles,
they were properly deductions from the damages, and within the
arbitera powers ; — he is only wrong in leaving the valuation of the
wheat to others, and not deciding it himself. This is not properly a
submvsion, but an agreement ; and I rather think that it is still be-
fore the arbiter.
Loan Allow ay.— If this were an ordinary submission, I would have
no difficulty in setting it altogether aside ; . but it is part of an agree-
tol. v. x
144
CASES DECIDED IN THE
ment— a referents to ascertain the conditions for accepting the sur-
render of « lease ; end as part of the agreement, I hare great difficulty
in getting quit of it. To a certain extent, so far as regards the 80
guineas, the arbiter has gone quite right ; but, as to the rest, his
aerard is quite inexplicable ; and I rather think that it should go
back to die arbiter to settle these ; only I entertain doubts of sending
it to the same arbiter, on the ground of his having given an explan-
ation of his decree on the partial application of one party.
Lord Justice-Clerk. — - This decree cannot, I think, be split into
parts. The fair meaning of the submission is, what was to be paid
by the one party to the other ; and in determining the damages, the
obligations iu the lease must be taken into view. Nor do I think
that the arbiter went beyond his powers in considering how for the
houses were deteriorated, or what was due in respect of the wheat
crop ; and his only error was in not valuing it himself, but leaving it
to be done by a new appointment, llie decree, therefore, does not
exhaust the submission ; and although we do not mean to lay down
a general rule that a decree-arbitral cannot stand in part and be re-
duced in part, yet this decree is in that situation. The agreement,
however, may still be followed out, although I concur with Lord
Alloway that we cannot remit to the same person ; but as the' par-
ties are now willing to name new referees, the cause may be sent
back to the Lord Ordinary, to have that course of procedure fol-
lowed out.
Pursuer's Authorities.— lard Kilkerran in Lovat *. Fraaer, June 22. 1738, (G25) ;
8teele, June 22. 1809, (P. C.) ; Woodrop, Feb. 4. 1794, (828) ; Lindaay, July 16.
1794, (BeU'a Oaaee) ; Haggle, Feb. 1. 1825, (ante, Vol. III. No. 312) ; Glennie,
Feb. 24. 1825, (ante, VoL III. No. 388.)
Defender's Autkorities.—Eul of Selkirk, Jan. 17. 1778, (687) ; KvdVJune 19. 1810,
(F. C.) ; Johnstone v. Cheape, aa reversed in H. of L. July 10. 1817*
Macmillan and Grant,— J. J. Phaser, W. S— Agents.
ACT OF SEDERUNT
mg ike Business of the Outer Home.
Dec. 15. 18£6. By this Act the Court, * taking into consideration the several
* Acts of Sederunt and Regulations of Court for conducting the
( business of the Outer House by five Permanent Lords Ordi-
' nary, and that the time has now arrived when, under the pro-
' visions of the said Act of Parliament, (6th Geo. IV. c 120,) the
* duty is to be performed by seven Permanent Lords Ordinary,
COURT OF 9BSSION. 145
* do hereby ia so far repeal, Vaty, and alter the ' said Acts of
« Sederunt and Regulations, and in virtue of the power's conferred
* by the said Statute, section 50, enact and declare/ —
as
senior
L That each of the senior six Permanent Lords Ordinary shall in his Regulation*
turn officiate as Ordinary for the Outer House, and upon oaths and wit- £<]** Ordinary!
nesses ; a Permanent Lord Ordinary of the one Division being always
succeeded as Ordinary in the Outer House, and upon oaths and witnesses
by a Permanent Lord Ordinary of the other Division alternately : But
with power also to any of the other Permanent Lords Ordinary, when in
the Outer House, to take the oaths of witnesses and parties. —Section
2. of A, S— (See infra, § IV.)
II. (1.) That three of the said six Permanent Lords Ordinary shall call Three senior
their respective rolls upon Tuesday and Wednesday, beginning at nine Ld8, 0rdinar>-
o'clock in the morning, viz. the senior Permanent Lord Ordinary of the
Second Division, senior Permanent Lord Ordinary of the First Division,
and second senior Permanent Lord Ordinary of the Second Division for
the time- — Section 8. A. S.
(2.) That each of these three senior Permanent Lords Ordinary shall,
when Lord Ordinary for the Outer House, call the regulation roll upon N
Tuesday ; and the roll of suspensions and advocations upon Wednesday,
after which the ordinary action roll. — Section 4. A. S.
(3.) That in each of the other five succeeding weeks the said three
senior Permanent Lords Ordinary shall call their respective hand rolls
upon Toesday and Wednesday .—Section 5. A. S.
IIL That the remaining three of the' said six Permanent Lords Ordi- Three other
nary for the time shall in like manner call their respective rolls upon Ldsfrttnarv*
Thursday and Friday, beginning fit nine o'clock in the morning. — Sec-
tion 3. A. S.
That each of these three Permanent Lords Ordinary shall, when offi-
as Lord Ordinary for the Outer House, call the regulation roll
Thursday ; and the suspension and advocation roll, and ordinary sc-
roll, upon Friday.— Section 4. A. S.
That in each of the five succeeding weeks these Lords Ordinary shall "
cadi their respective hand rolls upon Thursday and Friday. — Section 5.
A. & '
IV. (1.) That each of the said six Permanent Lords Ordinary shall, Hand Rolls
when Lord Ordinary for the Outer House, call a hand roll, (if time per- causes of the
mity) after disposing of the Outer House rolls, on either of the said re- <"* senior
apective days set apart for his calling the rolls of regulations, suspensions, ** ' marJ °
and advocations, and ordinary actions ; and upon Saturday shall call the
continued causes of that week's rolls, if any, and also a hand roll, begin-
ning at nine o'clock in the morning.— Section 4. A. S.
(2.) That each of these six Permanent Lords Ordinary shall in his
call a hand roD, at nine o'clock, upon the Saturday of the week im-
x £
146
CA8E6 DECIDED IN THE
Seventh or
junior Lord
Ordinary*
Ban.
Boxing
Defences, &c.
preceding that in which he 1b to officiate as Lord Ordinary in
the Outer House. — Section 5. A. S.
V. (1.) That the junior Permanent Lord Ordinary shall discharge the
duty of Ordinary for teinds, reductions, and special remits, upon Wed-
nesday, Friday, and Saturday of each week.— Section 1. A. S.
(2.) That Wednesday shall be allotted to First Division causes. That at
nine o'clock in the morning he shall call a roll of reductions belonging to
the First Division, and, after disposing of these reductions, he shall call a
hand roll also of First Division causes.-— Section 1. A. S.
(3.) That Friday shall be allotted to Second Division causes* That he
shall call a roll of reductions at nine in the morning, and a hand roll of
Second Division causes after disposing of the reductions* — Section I.
A.*S.
(4.) That on Saturday, at nine in the morning, he shall call his roll of
teind causes. That this roll shall be taken up by the teind clerk on the
Wednesday preceding, so as to be printed not later than the following
day ; and that, after having disposed of his teind causes, his Lordship
shall have power to call a hand roll of continued Court of Session causes.
—Section 1. A. S.
VL (1.) That upon Tuesday, till one o'clock, one of the Bars shall be
at the disposal of the Court for the use of either of the four junior Per-
manent Lords Ordinary who may apply for the same ; and on' Saturday
one of the Bars shall in like manner be at the disposal of the Court, for
the use of any of the three senior Permanent Lords Ordinary who may
apply for it — Section 6. A. S.
(2.) That the Bar in the south-west room off the Outer House shall be
exclusively allotted, upon Tuesday at one, Thursday at ten, and Friday
at one o'clock, to the Judges of the Jury Court ; and to Lord Glenlee
upon Thursday morning. — Section 6. A. S.
»
VIL That for the greater regularity and more expeditious boxing of de-
fences, the agent for the defender, respondent, or charger, shall, along
with the printed process copy defences, and also printed copy answers to
reasons of advocation or of suspension, lodge in the Clerk's hands one
other printed copy, in order to its being boxed for the use of the Lord
Ordinary ; which copy shall be delivered by the Clerk to the agent for
the pursuer, advocator, or suspender, when he ■ borrows the process to
enrol, without any additional fee ; and it shall be incumbent on the pur-
suer's agent to take care that the said copy be duly boxed before enrol-
ment, along with the printed copy summons, advocation, or suspension,
or reasons thereof; which boxing the Lords' clerks officiating at the
boxes for the time shall certify, in the usual manner, upon the back of
the process copy of the summons, advocation, or suspension ; and the
Clerks of Court are hereby prohibited to receive the process copy de-
fences or answers, unless accompanied with said boxing copy for the use
of the Lord Ordinary.
Dec. Iff. 1826.
COURT OF SESSION. 147
J. M'Lauchlan, Petitioner. — Cockburn — Marshall. tf0 qj
W. Carson, Respondent. — Sol-Gen. Hope.
AdminiMtratio* of Ju*ioes— Held to be an interference with the administration of
justice to publish a report of a statement made at a public meeting of road trus-
tees by their agent, relative to a case depending in Court against them.
Ok the 22d of May 1826, M'Lauchlan raised an action of da-
mages against the road trustees of the county of Wigton, in which
he alleged that in consequence of their having formed a new lu" Dlv™°*-
road intersecting an old one which they had neglected to shut S"
up, he was overturned, while travelling along it during the night
with his gig and horse, by means of a ditch which they had cut
cut across it, whereby he had suffered a severe injury, and there-
fore that they were liable to him in damages. The case was,
on the 4th of July, remitted to the Jury Court, and the trustees
gave in defences, stating that the old road had been shut up ; that
M'Lauchlan was aware of this ; but that, being desirous to out-
strip the mail-coach, and being somewhat intoxicated, he had
driven his horse and gig with great impetuosity, and, instead of
proceeding by the new straight road, he had turned off and en-
tered the old road, which had for some time previous become
the property of the Earl of Stair ; and therefore, if any accident
took place, his Lordship, and not the trustees, was liable ; but
that M'Lauchlan had no claim against any one, as the alleged in-
jury arose from his own impetuous conduct. These allegations
being denied by him, the Jury Court ordered the case to be pre-
pared in the usual form, by condescendence and answers.
While the case was in this state, a paragraph appeared in the
Dumfries Weekly Journal, and Nithsdahe, Annandale, and Gallo- ~
way Advertiser, of 17th October 1826, (of which Carson was the ,
editor,) under the head Wigton, in which, after giving the local
news of that town, and mentioning that a meeting of the free- .
holders, had been held, at which certain matters had been dis-
cussed, and that this was followed by a meeting of the road trus-
tees, at which their law-agent gave the meeting some informa-
tion on a case in which they were interested, proceeded as fol-
lows : —
. ' There was also another case. One M'Lauchlan, a tea-merchant of
1 Glasgow, having been at Stranraer on business, in endeavouring to out-
' strip the mail had taken the wrong road, and actually leaped his horse
1 and gig* over a ditch three feet wide, and carried it over the bank, where
4 he was upset, though without any particular injury to himself, horse,
1 °r gig, excepting that the country people cut away the harness to ex-
148 CASES DECIDED IN THE
* tricata him. He at first demanded ten pounds of damage*, and it
« intended to pay this sum, rather than enter into an expensive litigation ;
* but M'Lauohlan became impatient, and raised an action- against Mr.
' M'Haffie, the clerk to the meeting, increasing his demands from ten to
* one hundred pounds. Mr. Hathorn stated that he had given in defences,
' and had learned much in favour of the road trustees since he came into
« the county. The line of road given up was upon Lord Stair's property.
' The road trustees had returned it to him, and he had instantly taken
' possession by sinking a ditch, and putting a strong paling completely
* across it. If, therefore, at the end of nine months it was broken down
( pr carried away, the road trustees were not to blame. It was against
* Lord Stair he ought to have raised his action. It could be proved that
' he had seen and was aware of the state of this road in the course of the
1 day, and would not believe the next morning but that he had been on
' the right road, until he was taken out to see it: It could also be proved
' that he never employed a medical man, and was not materially hurt*
' It was agreed that another attempt at a compromise should be made,
' and if unsuccessful, that the case should be defended, and Lord Stair
* conjoined in the process, as the party in possession at the time.'
MXauchlan then presented a petition and complaint to the
Court of Session, complaining of this paragraph as- being calcu-
lated to interfere with the administration of justice; and prayed
the Court ' to inflict on the said William Carson a punishment
* adequate to the foresaid offence of which he has been guilty,
' and to find him liable in expenses/
In support of this complaint he stated. That as" the parties in
the depending action were at issue on the facts, the case must ne-
cessarily be tried by a jury at Ayr; and that as the jurors and
witnesses would consist of persons residing in the counties of
Wigton and Ayr, in which the newspaper had its chief circula-
tion, and as the paragraph contained- an ex parte statement of
the case, it had a direct tendency to create an improper impres-
sion and prejudice on their minds.
To this it was answered, That the respondent had received the
communication from his regular correspondent at Wigton, and
that as it was the report of what had taken place at a public meet-
ing and formed part of the local news of that district, he had in-
serted it in his newspaper, but that, in doing so, he had no inten-
tion whatsoever to interfere with the administration of justice, or
to raise up any prejudice against the case of the complainer ; (hat
he had expressed his willingness to insert any counter statement
which the complainer might think requisite, and bad since kept
his readers on their guard against being influenced one way or
another by the contents of the paragraph. At the same time he
COURT OF SESSION. 149
expressed contrition if he had done any thing irregular, and was
still willing to do what should be thought fit to make amends, if
any injury had been suffered.
The Court sustained the complaint, but, considering the nature
of the respondent's answer, and that be bad expressed contrition,
did not inflict any fine ; and the oomplainer having limited his de-
mand to expenses, the Court pronounced judgment accordingly.*
Load Pbesjdxnt*— Reports of depending cases are at all times very
dangerous, and tend to interfere with the administration of justice.
It may be perfectly lawful to state that an interesting point of law
has arisen, and is depending in Court ; but it is extremely improper
to enter upon a history of the facts of a case. This ought not to be
done until it is decided. In particular, this is the more requisite since
the institution of Jury Trial, and in regard to cases depending in that
Court. I observe that in England full reports are given, even where
a judicial inquiry is merely making, as in Coroners' Inquests, which
cannot nil to be prejudicial to the parties on the trial of the case ;
and the editors of newspapers appear to insist that they hare the right
to do so.
The other Judges && mat express aay opinion, but did not dissent
from that which was delivered.
Petitioner's ^«ttorty .--Henderson, Dee. 10. 1824, (ante, Vol. III. No. 278.)
R. Matthbw,— J. Phillips,— Agents.
R. Tutus, Pursuer. — MackgUL No. 92.
G. Houy, Defender. — Jeffrey — Napier.
Ik an action at Tullis' instance against Houy, founding on a Dec. 16. 1896.
decree-arbitral awarding a certain sum to be paid by Houy, he lw Dlv,8Ioir.
pleaded, as a preliminary defence, that there was a submission de- Lor(j Meadow-
pending, under which the subject-matter of this action was in- b*"k-
eluded ; but the Lord Ordinary and the Court, being satisfied
that this was not the fact, repelled the defence.
A. Momrpwiinr, W. S—- G. and W. Napier, W. S<— -Agents.
* The question was not raited by the respondent, whether the complaint was
competent In the Court of Session in relation to a case depending before the Jury
CcouVafld properly belonging to its jurisdiction.
ISO CASES DECIDED IN THE
t
N O. 93. J. Morrison, Com plainer. — Sol.-Gen, Hope — Keay — T. A. Duff.
J. Ramsay, Respondent. — D. qfF. Moncretff- — Cockkurn.
Freehold Qualification— Sasine— Notary* 8 I>acyti*/.«~Held,— 1. —That it is not a
sufficient objection to an instrument of sasine written upon the face of a single
page, that the notary's docquet bore it to be written * super banc et duas pre-
' cedentes paginas;' — andy— 2. — That an objection may be pleaded in Court,
though not recorded in the Freeholders' minutes.
Dec. 16. 1826. At the election meeting of the Freeholders of the county of
2d DrnsT Banff* held in June last, Ramsay presented a claim for enrol-
M'K. ment, to which it was objected that the notary's docquet to the
instrument of sasine founded on, stated it to be written * super
€ banc et duas precedences paginas/ while in fact it was written
on the face of a single page ; but the objection inserted in the
minutes was merely the general one, that the claim * is not sup-
.' ported by the titles produced." The Freeholders having repelled
the objection, and admitted Ramsay to the roll, Morrison pre*
. senjted a petition and complaint, founded on the objection above
mentioned, which was remitted to the Lord Ordinary, and by his
Lordship reported on Cases.
The pleas in law maintained by the complainer were as follows:
<vl. The docquet of an instrument'of sasine must be consistent,
' intelligible, and, above all, it must contain no statement which
' is untrue. In all matters which are descriptive of the instru-
' ment, it affords the means of identification ; and consequently,
' if it states what is ex facie untrue, as applied to that instrument,
' it may fairly be presumed that it was intended to be annexed to
' a different instrument.1
« 2. When a sasine is recorded, the whole docquet must be re-
' corded ; and when the principal is produced, it must correspond
* with the description given of it in the recorded docquet.'
i Those maintained by the respondent were,
', 1. It is incompetent for a party to state an objection to a claim
* in this Court, as a Court of Review over the Court of Free-
' holders, which was not first stated to the Freeholders themselves.
' 2. When an instrument of sasine is written on the face of one
< sheet of paper, it is not a fatal objection to it that the notary
€ happens to say in his docquet that it was written upon this and
' the two preceding pages/
The Court, while they disregarded the first of the respondent's
pleas, unanimously dismissed the complaint with expenses, on the
ground that the statement of the notary as to the pages was a
, blunder in what was not in itself essentia], but a matter of mere
. surplusage.
COURT OP SESSION. 151
Coaptainer't Authorities. — A. 8, Jan. it 1756; Stewart, July 18. 1761, $623),
affirmed in H. of L. ; M 'Queen, Jan. S3. 1824, (ante, Vol. II. No. 607) ; Dennis-
toun, Nov. 16. 1824, (ante, Vol. III. No. 207); M'Intosh, Nov. 17. 1825, (ante.
Vol. in. No. 163.)
Respondent's Authorities. — Livingston, Mar. 3. 1762, (15418) ; Henderson, Mar. 6.
l776V(Ap. M. P. 2.); Dickson, Feb. 24. 1801, (Ap. Tailzie, 70 ; Douglas p.
Chalmers, (Twit's Coll. v. Sasine) ; Kirkham, May 21. 1822, (ante, Vol.1. No.
4S0) ; Bobertson, Jan. 7. 1742, (16905) ; M Donald, Feb. 14. 1778, (16956.)
John Gordon, W. S. — Carnegy and Shepherd, W. S. — Agents.
G. Young, Suspender.— -JamiJoro. No. 9^»
G. Paton, Charger. — Cuninghame.
Process— BilUChamber— Reference to Oath. — Held incompetent, after a bill has
been simpliciter and finally refused without any reservation, to refer the matter
to. the charger's oath.
Young having been charged by Paton on a bill of exchange, Dec. 16. 1826.
of which he was acceptor, presented a bill of suspension, (not 2d j3msiow.
containing in it any reference to oath,) which was refused by the Bill-Chamber.
Lord Ordinary. He then .reclaimed to the Court ; but their Lo^ Medwyn.
Lordships, on the 24th of November, adhered to the Lord Ordi-
nary's interlocutor. At the time of pronouncing this judgment,
no offer of reference to oath was made by Young ; nor was there
any reservation to that effect inserted in the interlocutor, which
was a simple judgment of adherence, with a remit to the Lord
Ordinary to find additional expenses due ; but on the 30th he
presented a minute of reference, which the Court remitted to the
Lord Ordinary, * to do therein as he shall see proper.1 His
Lordship, * in respect that the interlocutor refusing the bill was
* simpJiciter adhered to by the Court on the 24th ultimo, and no
c other remit made to the Lord Ordinary but to find additional
c expenses due, and that this minute was presented to the Court
* only on the 30th,9 refused it * as incompetent ;' and the Court
unanimously adhered.
The Lord Ordinary observed in a note : —
This minute was not given in by permission of the Court ; and the inter-
locator remitting it to the Lord Ordinary has not sustained the refer-
ence, and remitted to take the deposition of the charger ; but the re-
mit is, * to do therein as he BhaH see proper ;' and bis reason for con-
sidering it incompetent be shall now explain. The party has probably
been led to suppose that such £ minute, at this stage of the proceed-
ing, is competent, because, in a process in the Court of Session, it is
competent, any time before extract, to refer the cause of action to the
oath of the opposite party, although in other respects the cause haa
been finally decided according to the forms of the Court. Till a
153 CASES DECIDED IN THE
process in extracted, it is still in Court; and, while in Court, a refer-
ence to oath is competent. But when a bill has been refused in the
Bill-Chamber, there is not, and has not been, any process in Court.
The duty of that Court is to say whether the complainer has pro-
bable grounds for getting his cause into Court ; and it only becomes
a process after the bill has been passed, and when the expede let-
ters have been called as a summons. It is competent, no doubt, lor
the suspender to refer his reasons of suspension to the oath of the
charger where they are denied, and he cannot give them such a
degree of probability as to enable him to obtain a suspension of the
diligence of the Court, without resorting to that mode of proof. But
the reference to oath must be contained in the bill itself, or in the
petition or note which, brings the refusal of the bill under review.
This a the obvious interpretation of the act of sederunt, 29th
February 1689, of the act 20th November 1711, sect. 2, in which
last such a reference is mentioned as one of the reasons of suspen-
sion ; and the last act on this point, 6th December 1718, implies the
same ; — being the proof of a reason of suspension, it must be con-
tained in the only written pleadings which the practice of the Bill-
Chamber authorises the party to use for stating his reasons, and
showing their truth, or at least their probability. Nor is there any
hardship in tying him down to make this reference, at least with the
last opportunity there is of getting the bill passed on the original
grounds ; while there would be great hardship in hanging up the
discussion, by allowing a reference to be made at a future time.
The only relaxation on this point which has been introduced is, that
the Court may admit a reference made at the Bar, at advising a pe-
tition or reclaiming note against an interlocutor refusing a biL As
it was competent to have made the reference in the bill, so was it
also in the petition ;. and it may yet be made before the petition is
refused, and the bill thus stand finally refused. But w.hen, without
any such reference, the interlocutor refusing the bill is adhered to,*
the question as to passing is no longer entertained. This has been
finally disposed of, and nothing remains but for the Lord Ordinary
to decern for the expenses formerly found due by him ; and if addi-
tional expenses are allowed by the Court, there must be a special
remit as to these. But the provisions of the act of sederunt 19th
December 1778, as to expenses, show that although it may not he
competent immediately to get decree for expenses, this cloet not
hinder the party proceeding with his diligence on the bill being re-
. fused, as if the bill was still in the Bill-Chamber, as to the subject-
matter of the suspension, till the decermture for the expenses, as mo-
dified, is extracted. After the note in this case was refused on 24th
November, and the remit made to the Ordinary as to the additional
expenses, there was no proceeding in the Inner House in which the
minute of reference could, be given in ; and it would have been
equally incompetent to have presented the minute to the Ordinary
COURT OF SESSION. 133
on die Bills, who was functus, except as to giring decree for the ex-
penses. Since the Lord Ordinary has been conversant with the
practice of the Bill-Chamber, be never saw a reference to oath at
this stage of the proceedings ; and, on inquiry, he understands that
it k entirely a novelty in the practice of the Bill-Chamber ; so that,
being contrary to principle, he has felt no hesitation in refusing to
sustain H» In doing so, however, he has thought it bis duty to state
his reasons fully.
In this opinion the Judges concurred.
J. Gemmkll, — W. Patrick, W. S. — Agents.
#
Duke of Atholl and Others, Suspenders. — Keay. No. 95.
H. Sc&tmgeotjb. Weddebbuen and Others, Respondents.—
D. qfF. Moncreiff—Jardine — Ivory — Tawse.
Salmon FUking. — Bill of suspension passed, and interdict granted, as to fishing
• by any other mode than the ordinary way of net and coble.1
This was a bill of suspension and interdict at the instance of Dec. 16. 1826.
the Duke of Atholl and others, proprietors of the Tay fishings, 2o Division,
to hare Wedderburn and others interdicted from fishing salmon Bill-Chamber,
by means of certain descriptions of nets called toot nets, stage ^^ Alloway-
and tent nets, alleged to be of the nature of stake nets and siiriilar
machinery, which had been found illegal in the former cases re-
garding the Tay fishings. On the other hand it was averred,
that the only modes of fishing practised by the respondents came
truly under the description of net and coble fishing, and that they
had been long in use to fish by these methods ; nor was there
any very precise allegation on the part of the suspenders as to
their being of recent adoption, in a minute which they were allowed
to give in on that point.
In these circumstances, while the Court, on the report of the
Lord Ordinary, passed the bill, their Lordships merely granted
an interdict in general terms against fishing ' by any other mode
c of fishing than the ordinary way of net and coble,1*— being the
terms used in an interlocutor of the Court in 1880 regarding
these fishings*
J. Thoxsov, W. $<— J* and A. Smith, W. S—J. Hbriot, W. S^-
J. Yule, W. S— W. Martin,— Agents.
154 CASES DECIDED IN THE
r - .
No. 96. Sir C. Halket, Pursuer. — D. ofF. Moncre'iff—Cuninghamc.
Earl of Elgin, Defender. — Sol-Gen. Hope — Bell — Robertson.
Coat— Mutual Contract— Submission.— Circumstances in which 8 party holding in
lease- two fields of coal at some distance from each other, together with a right
' to the use of a level belonging to the lessor for the purpose of working these
fields, found liable to pay the lessor a consideration for the benefit derive^ by him,
in consequence of carrying the level through certain intermediate fields of his
own, In order to make the communication to the upper coal-field let to him by
his lease ;— and,— 2.— A submission, forming part of an 'agreement, held not to
fall by an omission to prorogate within the year*
Dec. 16.1826. Si$ Chaeles Halket is proprietor of the lands and coal of
2d Division. P^firra°e» and of the coal-fields of Balmulh in the county of
Lord Macken- Fife- Pitfirrane is situated near the Forth, and to the north of
zic- it lie the lands of Urquhart, between which and the lands of Bal-
mulh, which are situated furthest north, lie the lands of Clune,
&c, belonging to Lord Elgin. The coal in all these properties
is of considerable value ; but, from the lower situation of Pitfir-
rane, Sir Charles Halket possesses a level much deeper than any
in the other coal-fields. This level Sir Charles' father agreed to
> communicate to the lands of Urquhart, in consequence of his ob-
taining a lease of the coal of these lands ; and it was provided,
that on the communication of the benefit of the level to any third
party, the proprietor of Pitfirrane should be entitled to two thirds,
and the proprietor of Urquhart to one third of the consideration
obtained therefor.
In 1809 an agreement was ^entered into between Lord Elgin
and Sir Charles, which was carried into effect by a lease executed
in 1815, whereby Sir Charles, in consideration of a grassum and
a yearly rent* or lordship, Jet to Lord Elgin, for 999 years, his
coal in the lands of Pitfirrane and Balmulh, with an exclusive
right ' to the levels necessary for working the said coals, so far as
< in his lapds, or belonging to him.' Under this agreement and
lease Lord Elgin entered into possession of the coal of Pitfirrane
and Balmulh, and proceeded to carry forward the Pitfirrane level
from its termination in the lands of Urquhart towards Balmulh,
through his own coal-fields of Clune, &c, lying between Urquhart
and Balmulh. This led to another agreement between the par-
ties, whereby Sir Charles ratified and homologated the communi-
cation of the level so made by Lord Elgin * from the said coal in
* the lands of Urquhart to his own coal-fields to the north thereof \
and, on the other hand, Lord Elgin bound himself to pay to Sir
Charles, ' in name of compensation for the communication of the
' said level to the coal-fields of the said Earl, lying to the north
COURT OF SESSION. 155
* of the said lands of Pitfirrane and Urquhart,' such sum as should %
be awarded by two persons specified in the deed as arbiters for
that purpose ; it being declared that Sir Charles should be ac-
countable to the proprietor of Urquhart for one. third of the price
so to be awarded, as due to him in terms of the lease between Sir
Charles and his predecessor.
The arbiters appointed by the above-mentioned agreement pro-
ceeded to execute the reference ; but having omitted in one of the
years to prorogate the submission, Lord Elgin declined to pro-
ceed further with it, whereupon Sir Charles raised the present
action, to have it declared that Lord Elgin had no right, under
the lease 1815, to use the Pitfirrane level, except for working the
coal thereby let, and that his Lordship's right ' to communicate.
' the said level to his fields of coal lying to the north of die lands
' of Pitfirrane and Urquhart is constituted solely by the before-
' recited agreement9 of 1818 ; ' and the same being found and de-
' clared,* that Lord Elgin should be decerned to pay such sum as
should be determined to be the true value of such communica-
tion.
Id defence against this action, it was pleaded by Lord Elgin,
That as the lease 1815 gave him a right to the use of the Pitfir-
rane level for the coal of Balmulh let to him by that lease, and as
he could not communicate the level to that coal without carrying
it through his own coal lying between Urquhart and Balmulh,
that he was consequently entitled under the lease so to carry for-
ward the level, without paying any consideration for the use his
own coal necessarily derived by an operation he was thus entitled
to execute.
To this it was answered, That by the contract 1818 Lord El-
gin had expressly agreed to pay a consideration for tfee use of the
level for his own coal ; and although the amount had not been
fixed in the way pointed out in the agreement, his Lordship could
not thereby be freed from the obligation itself.
The Lord Ordinary having dismissed the action, Sir Charles
Halltet reclaimed. The Court recalled his Lordship's interlocu-
tor, and found ' that the pursuer Sir Charles Halket has right
* to a compensation from the defender for the use of the Pitfir-
' rane level for any coal not contained in the agreement and tack
' between the parties ; but that the defender is not liable to the
( pursuer in any compensation for the communication of the said
* Pitfirrane level to the coal-field of Balmulh.' With these find-
ings, their Lordships remitted the cause to the Lord Ordinary,
* with instructions to remit, before answer, to the persons named
4 in the agreement of 1818, to ascertain and report to his Lord-
«*i
156
CASES DECIDED IN THE
* ship the true worth and value of the communication of the Pit-
* firrane and Urquhart level to any coal-fields belonging to or
< leased by the defender, not contained in the said tack by the
' pursuer to the defender.9
Their Lordships were agreed, that if the level could be taken up to
Balmulh, without passing through any coal of Lord Elgin's, his Lord-
ship would be entitled, under the lease 1815, so to cany it up, with-
. out payment of any consideration to Sir Charles Halket ; but that,
on the other hand, if he communicated the use of it to his own coal,
he was bound, under the agreement of 1818, to make a remunera-
tion therefor ; and they thought that the reference forming part of
the agreement did not fall by the omission to prorogate it, but might
still afford the means of ascertaining the amount to be paid.
W. H. Sands, W. S*»~J. A. Chbykb, W. S-— Agents.
2d Division.
Lord Macken-
zie*
B.
No. 97* '• Nicol, Suspender.-*-!)* qfF. Moncreif—Pyper.
R. Cbichton, Charger. — Forsyth — Sandfbrd.
» »
Principal and Agent— Consignment. — Circumstances in which it was held, that
the master of a ship who had undertaken a consignment of goods to be disposed
of at his foreign port, and who, being unable to get them sold during his stay, had
transferred them to a merchant there* with whom the consignee afterwards Cor-
responded without objection, and by whom the goods were sold, was still liable
to account for the proceeds.
Dec. 16. 1826. In 1820, Scott, a merchant in Port-Glasgow, delivered to
Nicol, the master of a ship generally trading from that port to
the West Indies, two casks of tinware, on receiving which, Nicol
granted the following missive :— r I acknowledge to have received
4 two casks of tinware froth William Scott, amounting, as per in-
' voice, to «£7S: 19: 8 sterling, and will be accountable toltim
* for the proceeds, on condition that he pay freight at the rate of
* 22s. 6d. per cask, and my commission,' the amount of which,
however, was not specified. Nicol accordingly conveyed the
goods to St. Thomas ; but finding that he could not dispose of
them advantageously before leaving the island on his voyage
home, he intrusted them to Miller, a merchant there, not denied
to have been a person of respectability, and of good credit at the
time. Nicol returned to Port-Glasgow in 1821, and. stated to
Scott and the charger Crichton, (to whom Scott had in the mean
time indorsed Nicol's acknowledgment,) that he had left the goods
with Miller ; and they made no objection to his conduct. His
vessel was again chartered for a voyage to St. Thomas in the be-
ginning of 1822; and he, at Crichtorfs request, subscribed a letter
COURT OP 8ESSI0N. 157
to Miller, written out by Crichton'a directions, in these terms :—
' The two casks tinware I left with you in February 1821,
' amounting, as per invoice left along with them, to £7S : 19 i 3,
' if they are sold, you will please remit, per first packet, the amount
1 and account of sales to Mr. Robert Crichton here ; and if they
« are not sold, he will instruct you as to the disposal of them, and
1 his instructions or receipts for the casks will be binding on roe.'
To this letter Crichton added the following lines :— ' On receipt
* of this, if the above two casks tinware are unsold, Captain Nicol
' will instruct you as to the disposal of them ; and if they are sold,
1 I would be obliged by your remitting for them at best exchange
1 per first packet; and the second bill, with an attested account of
< sales, may be sent per first vessel for Clyde/ This letter was ad-
dressed by Crichton, * Mr. William Miller, merchant, St. Thomas,
' favoured per Thetis, Captain John Niool,' and was delivered by
him to Nicol. A few days afterwards, and immediately before Nicol
sailed, Crichton addressed a letter to him, dated 12th February,
stating, ' If the casks are not sold on your arrival at St. Thomas,
' you will please to dispose of them to the best advantage for
' cash, either by vendue or otherwise, and remit to me the pro-
' ceeds, with an attested account of sales. If they have been sold
* before your arrival, and the amount not remitted, I would be
' obliged by your getting it sent bm soon as possible.9 On his
arrival at St. Thomas, Nicol delivered Crtchton'S letter to Miller,
but be found that the goods had been sold by him ; and in answer
to the letter delivered to him by Nicol, Miller, of date 90th April
1822, wrote to Crichton as follows :— * I received your letter by
* Captain Nicol, regarding the casks of tinware left in my pos*
* session by that gentleman. The foregoing is sales of the same,
' and when the proceeds are realised, they shall be remitted agree*
' able to your instructions.9 This account of sales did not men*
tioo to whom the articles had been sold, and it deducted from
the amount five per cent, as commission. After the lapse of
about a year, the proceeds not having been remitted, Crichton
wrote to Miller complaining of this, and also of the deficiency of
the account of sales, in so far as it did not mention the persona
to whom the goods were sold, or at what credit ; but at the same
time requesting him to c say if you think the articles noted*1 (in
an accompanying list) ' might find a ready market in your quarter
' to sell -for cash.' Miller, iiowever, having died without remit-
ting the proceeds, Crichton raised an action before the Court of
Admiralty against Nicol for payment of the amount contained in
the account-sales transmitted by Miller, under deduction of the
five per cent, commission therein charged. Decree in absence
158
CASES DECIDED IN THE
haying passed against Nicol, 'he brought a suspension, on the
grounds,
1. That, under a commission of five per cent, the master of a
vessel taking a consignment to be disposed of by him at his fo-
reign port did not incur a del credere responsibility ; and conse-
quently that he had done all that was incumbent on him by in-
trusting the goods to a respectable merchant of good credit when
he was obliged to leave the place with his vessel, and intimating
this to the consigner ; and,
2. That Crichton had acquiesced in the transference of the ob-
ligation from him to Miller.
To this it was answered,
1. That five per cent, was, in point of fact, a del credere com-
mission; and besides, that Nicol haying given an express acknow-
ledgment for the goods, with an obligation to account for the
proceeds* a*d having, subsequently to the transaction with Miller,
accepted a letter from Crichton, again instructing him to dispose
of the goods and remit the proceeds, he was not freed from his
obligation by having delivered them over to Miller; and,
SL That the conduct of Crichton did not amount to a consent
to relieve Nicol of responsibility, and accept Miller in his stead.
The Court having adhered to an interlocutor of the Lord Ordi-
nary finding the letters orderly proceeded, With expenses, Nicol
presented a reclaiming petition, and offered to prove that a ship-
master Was never held to undertake a del credere obligation, un-
less specially stipulated, in which case the commission was always
15 per cent, and that even a merchant resident in the West In-
dies never undertook a del credere commission under 10 per cent. ;
and he contended, that 5 per cent/ only, being allowed here by
the charger in his summons,' clearly proved that it was not the
understanding of parties, that he should come under such a re-
sponsibility.
To this it was answered by Crichton, That no amount of pom-
mission was specified in the original agreement, and that although
be had only proposed to allow 5 per cent, yet that was in conse-
quence of Nicol having never objected, or demanded more ; but
that he was willing to allow 10 per cent., which, on inquiry, he
admitted to be the commission generally allowed in circumstances
like the present ; and the Court, ' in respect of the offer now
' made to allow an additional 5 per cent.,1 again adhered.
Lord Alloway. — This is a very important question in commercial
law, and the view I take of it is this : Certain goods are intrusted
to Nicol, a shipmaster, by a person who knows that he is not to re*
main at St. Thomas; but to return immediately. Nicol giants a let-
COURT OF SESSION. 159
ter of acknowledgment, which does no more than express the obliga-
tion which he would hare incurred at common law, that he was to
sell the goods, and bring home the proceeds. He finds, from the
state of the markets, that they cannot be sold without a loss. He
must then either sell at a loss, or bring the goods back, or leave
them with another person. He accordingly places them in the
hands of Miller, a respectable merchant, in good credit at the time ;
and in the circumstances, he was entitled to do so by the commer-
cial law of the whole world. He then comes home, and com-
municates what he had done to Scott and Crichton, who make no
objection, but, on the contrary, write to Miller with instructions re-
garding die goods, thus acknowledging his employment. By the
time Nicol gets back to the West Indies, he finds the goods sold,
but the price not paid, so that the letter of 12th February from
Crichton (which was in fact merely a friendly request to look after
the goods subsequent to the regular instructions to Miller, and could
fix no obligation on Nicol,) was thereby superseded. Miller then
sends home an account of tales. To this Crichton makes no objec-
tions for a year, and even then he does not complain of Millers em-
ployment, but only that the account-sales is not sufficiently explicit ;
and be so for accepts this account as to make it the foundation of
his action against Miller, and to conclude for the amount therein
contained. This is a complete acknowledgment of Millers authority
to act. The latter, however, dies without remitting the proceeds,
and the present action is brought against Nicol. In these circum-
stances, I cannot conceive that it ever was the understanding of par-
ties that Nicol had undertaken a del credere obligation. He was
not to account for the proceeds as a guarantee, but only on receiving
the price, both at common law, and in terms of his letter of acknow-
ledgment. The question comes simply to this, Is a person in such
circumstances entitled to put goods into the hands of another con-
signee of good credit ? I think that he is, and that the moment he
gives notice to the consigner, and the latter does not object, he is
totally and absolutely relieved from all responsibility ; and in this
case Crichton not only did not object, but he expressly acknowledged
the authority of Miller. The amount of commission is of trivial im-
portance, except as showing the understanding of parties. . It is not
now denied that 5 per cent, is not a del Credere commission, and
that sum only being allowed in the summons, shows the interpreta-
tion put by the parties on the contract ; for it is justly stated by
Mr. Fell, that * in all cases where the words of the party promising
* are at all doubtful, the Court will take into consideration the situ-
' ation and circumstances of the parties, to enable them to judge of
* their respective intentions and understanding at the time of the
' agreement made.'
Loan Glenleb.-— I do not think that the question turns on whether
this was a del credere commission or not ; but it seems to me to be,
VOL. V. L
JGO CASES DECIDED IN THE
whether the shipmaster has been absolved from giving b proper ac-
count of sales, for as yet there has been no account at all* There
was an obligation, in the original missive to account for die proceeds
of the goods, and so far from being relieved of this, Nicol undertakes
it de novo, by accepting the. letter, of 12th February, from Crichton,
directing him to sell the goodalf not sold, and if sold, to remit the
proceeds. If Miller had sent a proper account of sales, there would
have been a great deal to say for Nicol ; but there has been no pro-
per account of sales, for the one sent does not mention the names of
the parties to whom the goods were sold* If. the question had been
with Miller, he never could have got off; and as Nicol, by accepting
Crichton's letter of 12th February, undertook to sell* if not sold, and
if sold, to remit the proceeds, be k still liable. There is, no doubt,
an absolute necessity for Jbolding it a suitable transaction in a ship-
master to leave goods consigned with him in another's hands as sub-
agent, but he is still responsible that that person shall do the duty
properly, especially if he afterwards undertake to see it done. I
think, however, there is still room for allowing to Nicol deduction
of commission besides that to Miller, which is of the nature of ex-
penses of the sale.
Lord Pitmilly. — This k a case of circumstances, in which two
questions arise. 1. Is Nicol accountable at all ? and, 2. If so, on
what terms ? As to the first, I cannot doubt but that he k account-
able, when I read the terms of bis obligation. It k true that be did
right to hand the goods over to Miller ; but did that free him from
responsibility ? It k clear it did net. . Crichton could know nothing
of Miller. Nicol must be accountable for him, and I do not think
the letters amount* to a novation Than, second, On jrbat terms k he
to account ? In relation to thk, I think* that besides Millers com*
mission, he would have been entitled to commission for. himself, had
there been a proper account of sales ; but, as there has not, I do nof
think that he can claim any commission for himself.
Lord Justice- Clerk.— I am much of the same opinion with that
last delivered. I do not say that Nicol was to stay at St. Thomas
in order to sell the goods ; but if he chooses to delegate the com-
mission to another, he must be liable for the delegate that a proper
account shall be rendered, which has not been done here, there being
no mention of the purchasers. Then hk receiving the letter of 12th
February constituted the obligation anew. Thk k a case sui gene-
ris, and apart from the doctrine of del credere,— •being an obligation
to account for proceeds, which has not been fulfilled.
R. \Velsh,—D. Fisher, — Agents.
• COURT OF SESSION. 161
/ •
- »»
W. Goidm, Suspender.— Weaves. No. 98.
J. Deans, Charger.— Shaw.
Process — Forgery*-*. Geo. JF.e. ISO. — Manner of making up the record in
cases where forgery is proponed.
Goldeb brought a suspension of a bill, alleging forgery, which Dec. 19. 1820.
was denied by the charger Deans. Both parties were desirous 2d Divihom
to close the record on the suspension and answers, but a difficulty Lord Macken-
having occurred as to the competency of doing so, the Lord Or- zic-
dinary reported the case to the Court as to the manner in which
the record should be niade up. His Lordship stated that under
the old form, the suspender was bound to propone improbation
at the Bar, and consign £40 Scots:— that the charger then
stated that he was ready to abide by the document, whereupon
he was ordered to do so judicially ; — and that, having done so,
the case was prepared by articles improbatory and approbatory,
which were truly mutual condescendences. His Lordship, how-
ever, observed, that there was no provision in the late Judicature
Act for closing a record in this way, but that the difficulty might
be obviated by holding the articles as condescendences, or con-
descendence and answers, and requiring them to be signed by the
parties as formerly.
The Court were of the same opinion, and directed bis Lord-
ship that in such cases he should, after the consignation and
abiding, order a condescendence of articles improbatory, and an-
swers containing articles approbatory, which, after being revised
and signed by the parties along with counsel, should be accom-
panied with pleas in law, and the record then closed.
Campbell and Macdowall, — J. Wilson, W. 8^— Agents.
A, Ritchie, Suspen4e.r.— flo^^r<«>n— Cwrrt^. No. 99*
J. Mackat, Charger. — D. qfF. Momrriff—Lumsden.
Process — 6. Geo. IV. e. 120;— Held hot necessary, where a reclaiming note, ac-
companied with the vecord, has once been presented, to box a second copy of the
record, along with subsequent reclaiming notes on other points of the cause.
After the decision of the points in this case, mentioned ante, Dec. 19. 1826.
Vol. II. No. 383, and Vol. IV. No4. 349, the Lord Ordinary, « in 2d £^m.
4 respect of the bill charged on being of itself probative of value, Ld. Cringlctie.
1 and there being no competent proof to the contrary/ repelled the B.
reasons of suspension, and found the letters orderly proceeded.
Ritchie then presented a reclaiming note, to the competency of
which it was objected, that it was not accompanied with the re-
cord of the cause. The Court, however, repelled this objection,
l2
162 CASES DECIDED IN THE
on the ground that the record had been boxed with a former re-
claiming note on one of the previous points of the cause ; but, on
the merits, they adhered to the Lord Ordinary's interlocutor.
C. Gordon, W. S—- W, Duthie, W. S— Agents.
No. 100. M . and E. Middleton, Pursuers. — D. qfF. Moncreiff—
Maitland.
Rev. J. Yobstoun, Defender. — Jeffrey— Walker.
Implied Warrandice — Reparation,— Circumstances in which a party who, a few
weeks before the judgment of the House of Lords setting aside the Queensberry
leases, obtained a sublease of one of the farms * to the termination1 of the prin-
cipal lease, but without any clause of warrandice, was held entitled to relief and
damages from the principal tenant.
Dec. 19. 1826. The defender held one of the farms of the Queensberry estate,
"" under a lease containing a clause of absolute warrandice, for the
Ld. Cringietie. period of 19 years from Whitsunday 1810. In part of this farm
F. the pursuer Martin Middleton was subtenant, at a rent of £95>
by a sub tack which did not expire till 1821. This sublease he
renounced on the 15th June 1819, (being about a month before
the judgment of the House of Lords in regard to the validity of
the Queensberry leases,) in consideration of a new subtack in fa-
vour of himself and his son Edward, at the increased rent of
£115. The period of this subtack was stipulated to be ' from
' Whitsunday 1819 to the termination of Mr. Yorstoutfs lease ;*
and it was declared that the farm was to be possessed, ' subject to
* all the regulations of the Duke of tjueensberry's lease,' some of
which had reference to the concluding years of the tack.
After the judgment of the House of Lords setting aside the
lease of Halscar, a decerniture of removing was obtained against
Yorstoun and Middleton, on a summons executed in 1815, which
concluded for removing, and for violent profits, against both the
principal and subtenant. Yorstoun thereupon raised an action
of relief and damages against the executors of the late Duke of
Queensberry under the warrandice in his lease ; and Middletons,
on the other hand, raised this action of relief and damages against
Yorstoun, founding on their subtack from him.
In defence Yorstoun pleaded,
1. That as the sublease contained no clause of warrandice, he
could only be held to have warranted against his own fact and
deed ; and, N
2. That, in the circumstances of the case, the words * to the
' termination of Mr. Yorstoun's lease' must have had reference
to its termination by reduction, and was not equivalent in mean-
ing to the « expiry,' or < for all the remaining years' of the lease.
COURT OF SES6ION. 16S
To this it was answered, ,
1. That where no warrandice is expressed, absolute warrandice
is implied; and,
2. That, at the period of accepting the sublease, the case of
Halscar stood with a judgment of one Division, and the opinion
of a majority of the whole Court, in favour of the tenant ; and
that the period which had elapsed from the hearing of the cause
before the House of Lords, without judgment having been given,
rather tended to increase the probability of an affirmance ; and far*
ther,that the circumstance of the pursuers having renounced a lease
of which two years were to run, and of which the rent was £90
less than that in the new sublease, clearly showed that the period
in view was the termination of the principal lease by its natural
expiry only, which was also the true meaning of the expression.
The Lord Ordinary assoilzied the defender; but the Court
altered, and found the pursuers entitled to jelief and damages,
and remitted to his Lordship to proceed accordingly.
T. Ranks*, — W. Griersok, W. S. — Agents.
J.- Durwabd, Petitioner.— Brawnke. No. 101.
Heritable Creditor— Intereit.--An heritable creditor in a cognition and sale, having
purchased the house over which his security extended, and pud up the arrears of
fen-duties, allowed bank interest thereon.
The late James Dickinson was proprietor of A house held feu of Dec. 19. 1826.
Sir Henry Raeburn, over which he had granted an heritable bond 2d Division.
to the petitioner Durward, who, in a process of cognition and sale Ld. cringietie.
at the instance of Dickinson's son and heir, purchased the house, Fa
and was obliged to pay at his entry arrears of a year and a half's
feu-duty, of which, by the articles of roup, be was entitled to be
relieved. In a petition for a warrant on the cashier of the bank
in which he had consigned the price, to pay to him the amount
of his bond and these feu-duties, he also craved warrant foripay-
ment of interest on the latter. His petition having been remitted
to the Lord Ordinary, his Lordship reported that it had been ob-
jected to his claim, that he was not entitled to demand interest on
the feu-duties paid by him, as they did not bear interest ex lege.
His Lordship, however, stated, that as money must otherwise
have been drawn from the bank to pay these feu-duties, he con-
sidered that it would be reasonable, to allow him bank interest.
The Court accordingly granted warrant to that effect.
A* Johnstok, W. S, Agent,
164 CASES DECIDE© XN THJS
No, 102. A. Gordon, Pursuer.— 2>. of F. Moncreiff--Morc.
. Royal Bank of Scotland, Defenders. — BeU—AHson*
Reparation.— 'A party having opposed an application to the Dean of Guild for
leave to erect certain buildings, and having been successful in his opposition ;
but having made no appearance in the House of Lords, and not having intimated
that he was not to oppose the appeal— Held, on the judgment having been re*
versed, that his conduct up to the date of the appeal was not relevant to sub-
ject him in a claim of damages ; but the cause remitted, quoad ultra, to the
Jury Court.
Dec. 19. 1826. Gordon was proprietor of a diop behind the piazzas in the High
2d Division. street nea* the Parliament square, in the buildings burnt down by
Ld. Cringietie. the great fire of 1824» In 1817 he had made an application to
u» the Dean of Guild for a warrant to bring forward his shop to the
line of the street under authority of the police act, 57th Geo. III.
c. 68, which empowered the Dean of Guild to authorise the pro-
prietors of such shops or houses ' to bring forward the same to
' the front of the said pillars, so as to include the areas of the said
* piazzas and recesses in the said shops and houses.9 This appli-
cation was opposed by the Royal Bank, who possessed a house
behind the High street, occupied by them as their bank office,
the entry tp which was by a thoroughfare called the Royal Bank
close, which opened into the High street under the piazzas in
question, and which they alleged would be blocked up by the proi
posed erections. In support of their opposition, they maintained
that the application was contrary to a provision of the statute,
which declared that, * in effecting these purposes, no encroach-
' ments shall in any case be made upon die streets, public en*-
* trances, or foot pavements.' The Dean of Guild having granted
the warrant craved, and the Bank having presented a bill of ad-
vocation, Gordon served them with a protest, stating that he had
been offered nearly i?250 a year for his proposed new shops, and
that should the Bank prevent his going on with the building, he
would hold them liable for all the loss thereby arising. The
bill having been passed, and the letters expede* the Lord Or-
dinary (Lord Reston) remitted amphciter, but the Court, on the
26th of February 1819, altered his Lordship's interlocutor, and
dismissed the original application, * in respect that, by the po-
' lice act, no encroachment shall in any case be made upon the
c streets,' public entrances, or foot pavements ;' and to this interlo-
cutor their Lordships adhered, on the 21st of May, by refusing,
without answers, a reclaiming petition on the part of Gordon, who
thereupon entered an appeal. The Bank lodged answers, to
the petition of appeal ; but having shortly thereafter, in spring
1821, removed their office to the New Town, they sold their pre-
COUET OF SESSION. 1G5
raises behind the High street, and in the articles of roup it was
declared, that they were * to take no further concern with the
* lawsuit under appeal at the instance of Mr. Andrew Gordon ;'
and accordingly they lodged no appeal case in the House of
Lords. They did not, however, intimate to Gordon that they
were not to insist in the cause ; but they alleged that he must
have known that they were not, as he had been an offerer for a
part of the property exposed to sale under the articles of roup
above mentioned. The cause came on for hearing in the House
of Lords in February 1823 ; but there being no appearance on
the part of the Bank, judgment was delayed till June thereafter,
when the interlocutors were reversed.* Gordon then raised this
action, concluding against the Bank for i?2000, as the actual loss
and damage sustained by him in consequence of the proceedings
on the part of the Bank ; and he contended,
1. That as no person tcould make any alteration, even on his
own property within burgh, without an application to the Dean
of Guild, any party opposing such an application was truly in pe-
titorio, and in fact following out proceedings of the nature of an
interdict ; and that, as the Bank had adopted this method, in-
stead of an action of declarator or reduction of the Dean of Guild's
warrant, which would have left him at liberty to carry on his
operations suo periculo, they must be liable to him in the dama-
ges thereby occasioned ; and,
2* That the Bank were bound to have intimated to him their
abandonment of the action, so as to have enabled him to proceed
with his building*; but thpt not having done so, they were at least
liable in damages subsequent to the appeal.
To this it was answered,
1. That Gordon was, in point of fact, in petitorio, while * the
Bank were merely defenders ; but that, at any rate, no litigant
could be subjected in damages for carrying on a suit, unless it
was done maliciously, and without probable grounds, which was
not alleged tohave been the cape here ; and,
£. That the Bank had not, properly speaking, abandoned the
case, but had merely left it to the purchaser to carry it on, if
he saw cause ; and that Gordon must necessarily have known
their intention not to carry it on further, as he had been a bidder
under articles of roup which expressly mentioned this.
The Lord Ordinary having reported the case, ' in respect the
' parties have stated no case as a precedent for enabling the Lord
6 Ordinary to determine the relevancy of this action, and that it
* See 1 . Shaw's Appeal Cases, p. 452.
166" CASES DECIDED IN THE
' is of importance that it should be immediately settled,' the Court
found that there were no grounds for damages prior to the date
of appeal, and remitted to the Jury Court, in relation to the
claim of damages subsequent to that period.
Lord Justice-Clerk. — This is a very unusual case ; but' I think that
the pleas of the Royal Bank are more correct than may at first sight
have appeared. I have looked back to the proceedings in ihe for-
mer case, and I see that our judgment was pronounced after a do-
liberate view of the premises, which satisfied us, that on a fair con*
struction of the act of Parliament, the proposed erections would oc-
casion an encroachment on one of the public entrances to the Royal
Bank, which was of very great convenience both to them and to the
public. In these circumstances, is it possible to say that the Bank
are to be subjected in damages for opposing Gordon's application,
and trying a question in which this Court held them to be in the
right ? There was nothing vexatious, improper, or malicious in their
conduct, at least prior to the appeal ; and it is only on grounds of
such a nature that damages can be demanded on account of legal
proceedings. After the appeal had been taken, however, and the
Bank had determined to give up the case, they ought not to have
let it still hang up in the House of Lords for two years. Here it is
that I hesitate to say that there may not be a Claim for damages.
I do hot say that damages are due, but I think that there is room
for a remit to the Jury Court to try that question. As to the pe-
riod before the appeal, however, we must at once assoilzie from any
claim of damages for opposing Gordon's application before the Dean
of Guild and in this Court.
Lord Alloway. — There are most important points of law involved
in this case, but I concur in the' opinion delivered from the Chair.
I can see no difference between the situation of a pursuer and a de-
fender in cases of this kind. Whoever wrongously disturbs another
in the possession of that of which he is in full enjoyment, must be
liable for the consequences. But that is not the case here. It was
Gordon who proposed to make the alteration on the state of posses-
sion, and he could do nothing without the authority of the Dean of
Guild. He applies for this accordingly ; but though the warrant
was granted, it was advocated, and there was no right vested in him
till the judgment of the House of Lords. The Bank were merely
trying their rights ; and I know of no principle in law by which a
party is to be subjected in damages for trying bis rights in a Court
pf Law, merely because he has been unsuccessful. No doubt, if he
act mala fide, an action of damages may arise, but only from his
improper conduct, and that without regard to whether he is pursuer
or defender. But, in the present case, after a judgment of this
Court in favour of the Bank, it is impossible to mfMntftip that they
were in mala fide. Any doubt I entertain arises as to the period
COURT OF SESSION. 167
mentioned by the Lord Justice-Clerk* The appeal was entered in
1819, and no step was taken by the Bank after lodging answers,
and they at last abandoned it altogether. I apprehend they were
not entitled to let it hang up, but should have intimated this aban-
donment to Gordon. If any damage at all is due, it must com-
mence at the time of the appeal ; and I think that there are sufficient
grounds on this point to warrant at least a remit to the Jury Court.
Lord Pitmilly. — I have no doubt that the Bank are not liable for
any thing done by them before the appeal; but I hesitate very
much in going so far as has been proposed in regard to the subse-
quent period. It is necessary to attend to the circumstances in
cases of this kind, and I cannot throw out of view that it was Gor-
don who was here in petitorio. There is a marked distinction
between the situation of a man applying to show authority under a
statute for making an encroachment which he could not previously
bare done, and a person making alterations on his own property.
Any of the neighbours were entitled to appear to oppose Gordon's
application, which was necessarily made periculo petentis. If he
wished to go on with his building, he should have come forward and
stated that he was ready to take the risk, and 6nd caution for pull-
ing it down, in case he should be found in the wrong, as was done
in the case of Butterworth, in regard to certain buildings behind
Charlotte square. It is clear that the Bank cannot possibly be
liable in damages, up to the date of the judgment in this Court, for
exercising a privilege as to which that judgment found him to be in
the right ; and as to the subsequent period, they sold the premises, and
had no longer any interest to carry on the action, which they left to
the purchaser to follow out, if he saw cause ; nor can I see that this
should subject them in damages. No doubt, if they had resolved to
allow Gordon to build, and did not notify this to him, they might
have been liable ; but that was not the fact. They merely sold the
property, and left the right to oppose Gordon's buildings as a valu-
able privilege to the purchaser, as is proved by the articles of roup.
Sorely they were entitled to do this ; and, on the whole, therefore,
I would be for assoilzieing in toto, especially as Gordon's offer at
the roup goes far to prove that he must have read the articles ; but,
at the same time, I will not. resist the proposed general remit to the
Jury Court, which is not to exclude the plea on the part of the
Bank.
Pxrtver'M j4utAorities^-C\ar\i v. Thomson, Nov. 8. 1816, (F. C. and 1. Murray,
161); Paterson t>. Blair, July 14. 1819, (2. Murray, 177) ; Cameron v. Cameron,
March 14. 1820, (2. Murray, 232.)
Ivftntter*' Authorities.— Lord Eldon in Arbuckle v. Taylor, (3. Dow, 180) ; Duff;
May 19. 1826, (ante, Vol. IV. No. 16.)
W. and A. G. Ellis, W. S— J. Dumdas, W. S—- Agents.
I
168 CASES DECIDED IN THE
No. 103. J. Msnzies, E&q^~SoL~Gcn- Hope^JShaw Stewart.
Sir 6. Abercromby and Others. — D. qfF. Moncretff^
Rutherfnrd — G. Robinson.
Freehold Qualification— Member of Parliament.— A claim for enrolment as a Free-
holder having been rejected on the ground of nominal and fictitious, the Court,
after ordering and advising written interrogatories and answers ^subscribed- by
the claimant, repelled the objection.
Dec. 21. 1826. Mr. Mknzies presented a petition and complaint, stating
1st Division. l^at at ^e Michaelmafr Head Court of the Freeholders of the
Lord Eldin. county of Banff he had applied to be enrolled, as vested in the
H. liferent superiority of certain lands affording the requisite quali-
fication ; but it having been objected by Sir George Abercromby
and others that his right was nominal, fictitious, and confidential,
the freeholders had, without any evidence of that allegation, and
although he was not present, refused to enrol him. The Court
having remitted the case to the Lord Ordinary to prepare the
cause, and his Lordship having thereafter reported it, they ap-
pointed written interrogatories to be put to Mr. Menzies, and re-
quired him to give in answers to them, signed by himself. This
having been done, and the Court being satisfied that the allega-
tion had not been established, granted warrant for enrolling Mr.
Menzies in his proper place.
Mackenzie and Shaepe, W. S. — Ihgi^s and Wbib, W» S. — Agents,
w
No. 104. Lock wood and Co. and T. Megget, W. S. Coroplainers. — Jeffrey
—Broztmlee.
• » •
C. F. Davidson, W. S. RespQufenu—CttTcburn^Maidment.
Procegg— Summary Qmplaint.— Circumstances under which a summary complaint
against an agent, for an alleged irregularity in conducting an action, was dis-
missed.
»
Dec. 21. 1826. Lockwood and Company, together with their mandatory and
1st Division. aSent* Thomas Megget, writer to the Signet, presented a petition
Lord Medwyn. and complaint, stating, that in an action depending between them
s. and Robert Davidson before Lord Medwyn, a diligence and com-
mission had been granted to Davidson, for recovering certain
writings at Huddersfield in England :— that after it had been
executed, the commissioner, by mistake, had sent the' writings
to their agent Mr. Megget, whereas he ought to have sent
them to the respondent, who was the agent of Mr. Davidson :
— that Mr. Megget thereupon placed the writings in the
COURT OF SB88IOK 169
hands of the clerk of the process, and informed the re-
spondent of this, whose, duty it was to make up an inventory of
these writings ; — that on the faith that he would do so, Lock-
wood and Company had obtained an order on themselves to lodge
a condescendence, to the preparation of which it was necessary
that they should have access to these writings by borrowing them
from the clerk ; but that* the respondent having failed to make
up the inventory, they could not get them, whereby they were
unable to lodge their condescendence within the proper time, and
had on that account been subjected in £5. 5s. of expenses. They
therefore prayed that the respondent should be ordained to pay
to them that sum, and the other expenses which they ba4 incurred
in relation to this matter; and that such further fine or censure
should be inflicted on him as the Court might see fit. At the
same tune Lockwood and Company reclaimed against the award
of these expenses, and their reclaiming note was sent to the
roll.
In defence, the statements of the complainers were denied,
and it was pleaded, that the petition and complaint was incom-
petent,
1. Because there was no offence nor crime charged against the
respondent, but merely an irregularity in the mode, of conducting
business.
2. Because, as there was a prayer for fine and censure, the Lord
Advocate ought to have been a party ; and,
3. Because the interlocutor awarding the expenses complained
of was under the review of the Court in proper form.
The Court, in the circumstances, recalled the interlocutor
awarding expenses, dismissed the complaint, and found expenses
in relation to it due to neither party.
The Loan President observed, that if the commissioner had comr
nutted a mistake in sending the papers to Mr. Megget instead of to
the respondent, he ought to have corrected that mistake by deliver-
ing them to the respondent instead of to the clerk ; but as there
appeared to be errors on all sides, no expenses should be awarded.
T. Megget, W. S-— . C F. Davidson, W. S— -Agents.
170 CASES DECIDED IN THE
No. 10d. d. Milhollan, Pursuer. — Cockbum — Cuninghame.
R. Bertram and Gen. Dalrymple, Defenders.— 'Jeffrey.
, A. Hyslop and A. Millar, Defenders.— D. of F. Moncreiff—
Rutherfurd.
Reparation— Proce8s.-~He\d not necessary to libel malice in an action of damages
against Magistrates for wrongous imprisonment and oppression, and founded on
alleged irregularities.
Dec. 2i. i826. Milhollan raised an action of wrongous imprisonment and
1st Division, oppression against the defenders, concluding for damages. In
Lord Eidin. support of it he stated that he was a licensed pedlar and hawker,
D- and that, while he was travelling on the road from North Ber-
' wick to East Linton in company with another pedlar, Francis
M'Peat, on Saturday the 21st of January 1824, they were stop-
ped by a person of the name of Plain, who represented himself
as a constable, and demanded exhibition of their licenses as ped-
lars : — that the pursuer immediately exhibited his license, but that
M Teat being unable to do so, Plain took them both into custody,
and carried them to an inn at North Berwick : — that they were
then brought into the presence of the defender Mr. Bertram, one
of the bailies of that town, to whom the pursuer exhibited his
license, but, notwithstanding thereof, he sent him, along with
M'Peat, to gaol, to remain there till General Dalrymple, a Justice
of the Peace, should return from shooting : — that they were placed
in a room of the gaol along with a black servant of General Dal-
rymple's, who was confined there for a crime :— that after having
been detained for several hours in gaol, they were brought into
the presence of General Dalrymple in the council-room* to whom
also the pursuer exhibited his license, and required his liberation ;
but the General refused to do so, and granted a warrant to an
officer to carry both him and MTeat forthwith to Haddington, and
there * to deliver them over to the proper authority :' — that under
this warrant they were carried under an escort of several persons
to Haddington, and there committed to gaol on the Saturday
night, when their packs were taken from them: — that they were
confined in gaol without any warrant till Monday morning, when
they were brought before the defender Mr. Hyslop, provost of
that town, to whom the pursuer exhibited his license, and de-
manded redelivery of his pack, and that Mr. Hyslop ordered him
to be liberated, but refused to give up the pack. The pursuer,
however, did not allege that these acts had been done by the de-
fenders maliciously, but he stated that they had been done ille-
gally and oppressively, to the injury of his feelings, and to his
COURT OF SESSION. 1T1
loss both in trade and in character ; and, besides concluding for
damages, he demanded restitution of his pack.
No appearance was made for Plain the constable, who was
called as a party, and decree in absence passed against him.
In defence it. was stated by Mr. Bertram, That the pursuer
and M'Peat had been brought before him as one of the bailies of
North Berwick by Plain, on a charge of hawking goods on their
separate accounts, with only one license between them : — that as
this was a breach of the Pedlars' Act, and as it appeared that the
offence had not been committed within his jurisdiction, and of
which he could not judge, it was his duty to detain them till they
could be brought before a competent Magistrate :— that accord-
ingly he had done so, and therefore there was nothing irregular
on his part
By General Dalrymple it was stated, That the pursuer and
M'Peat had been brought before .him as a Justice of the Peace,
charged with, the above offence ; and that, on examining them,
they admitted sufficient to require him to detain them for the pur-
pose of trial ; and they having stated their inability to find caution
to appear at the next Justice of Peace Court, he had no alterna-
tive but to transmit them to the proper authority at Haddington.
Both he and Mr. Bertram, however; denied the allegation that
the pursuer had been committed to the gaol of North Berwick,
or placed in a room along with a criminal.
On the part of the gaoler of Haddington it was stated, That
the pursuer and M'Peat were brought to the gaol under the above
warrant of General Dalrymple on the Saturday night ; that it was
his duty to receive them ; and that they were accordingly detained
tifl the Monday morning, when they were liberated by order of
the Justices.
By Mr. Hyslop, the Provost of Haddington, it was stated,
That on the parties being brought before him and another Jus-
tice of the Peace on the Monday, they took their declarations,
from which it appeared that the charge was well founded ; but
that, as they wished the matter to be decided by the General
Monthly Court, they liberated them, and granted warrant for
detaining their packs, to be preserved in modum probationis.
When the case came before the Clerks of the Jury Court for
preparing Issues, they considered the summons irrelevant, because
there was no allegation of malice ; and, on a motion to the Court,
the case was remitted to the Court of Session to have that point
decided.
On the part of the defenders it was contended, That as no ir-
regularity had been committed by any of them, it was essential,
172 CASES DECIDED IN THE
to found & riaim of damages, that the pursuer should allege that
the proceedings had been adopted against him maliciously.
' Td this it was answered. That the pursuer had stated in his
summons a sufficient and relevant cause of action against all the
defenders ; that he was entitled to have the matter investigated
by a Jury ; and that it was not requisite that he should libel malice.
The Lord Ordinary, ' in respect that there is no charge of ma-
1 lice |n the libel against the defenders, or either of them, so as to
* be the foundation of a conclusion for damages, and also in re-
* spect that the pack or box belonging to the pursuer was detained
1 by the Justices in the course of their judicial proceedings against
< . ' them,' as vouched by the record,* found the action irrelevant,
dismissed the same, and found expenses due.
The pursuer having reclaimed, the Court, without calling on
his counsel to reply, unanimously altered, * found that it is not
* necessary in the present case that there should be a charge of
< malice libelled,1 found expenses due, and remitted the case of
new to the Jury Court.
Lord Gillies. — All that we have to consider at present is the aver-
ments in the summons, which the pursuer undertakes to prove, and
whether the ratio assigned by the Lord Ordinary of no malice being
alleged is sufficient to dismiss the action. The case is rested on al-
legations of a series of illegal and oppressive acts, which are denied
by the defenders ; and therefore the case must go before a Jury for
expiscation.
* Lord Craioue.— I also think that this matter must be investigated ;
and therefore the interlocutor must be recalled, and the proper stays
taken for haying that inquiry made.
' Lord Presidbnt— The pursuer avers irregular proceedings, and it
is admitted that, in point of law, in such a case it is not necessary
to libel malice ; but then the defenders deny the pursuer's averments,
so that the parties are at issue in point of fact, and consequently
there must be an investigation by means of a Jury.
J. Greig, W. S.— Tod and Hill, W. S.— P. Crooks, W. S.— Agents.
*
No. 106. T. Scott, Suspender. — Rutherfurd.
J. Patison Junior, W. S. Charger. — Skene — Wilson.
Sequestration — Trustee.— Held that a trustee on a* sequestrated estate, who sists
himself as pursuer of an action in place of the bankrupt, is liable to make funds
1 forthcoming in the event of the defender being found entitled to expenses ; and
that* it is not relevant to allege that the funds of the estate are exhausted.
Dec. 21. 1826. The pursuer of an action having become bankrupt, and his
1st Division, estate having been sequestrated, the suspender Scott sisted him-
Bill-Chamber, self in his place as his trustee, and . the litigation was thereafter
Ld. Corehouec. carried on at his instance. The charger Mr. Patison was agent
• COURT OF SESSION. 179
far the defender* and, after oansiderable litigation* the defender
was assoilzied, with rirpnawnj and. decree for them was issued in
name. of Mr. PatisoQ against Scott as trustee. On this decree he
charged Scott, who suspended, and stated that as he had no
funds, and as the decree proceeded against him in his. character
of trustee, ha was not liable personally.
In answer to this it was maintained, That as a trustee, in con-
tracting with a third party, is bound to have funds ready to im-
plement his obligation, and as Scott sisted himself as pursuer of
the action, he was bound to see that he had funds to meet the ex-
penses which might be awarded to the defender, and therefore it
was not relevant to allege tjiat he had no funds*
The Lord Ordinary refused the bill, and the Court adhered.
Lorj> PassinxNiw-Hie trustee represents the creditor*, to whose
fands the trustee may have access. Perhaps there are no funds of
the bankrupt, but' a third party has nothing to do with that. Hs
transacts with the trustee ss tepreeenting the creditors, and on their
credit. Examples of this daily occur, where the funds of the bank-
rupt are inadequate to pay the expenses of the law agent employed
by the trustee ; and the same principle applies to this case. The cre-
ditors were the true pursuers, being merely represented by the sus-
pender, who must seek his relief from them.
Lord Gillies. — I am of the same opinion. The creditors form a
corporation represented by the trustee, who, in contracting with
third parties, is hound to make their funds forthcoming.
Loan Craigie. — I have considerable doubts on this point ; and at all
events I think that we should give time to the trustee to recover
funds from thg creditors.
G. Scott, — D. Wilson, W. S. — Agents.
A. MDonald, Complainer. — Brown. No. 107»
A. ATDohaxd, Respondent — Sol.-Gen. Hope — Handy Me.
Factor loco Tutori*—Protidor.—k complaint having been made against a party as
factor loco tutoris, and be having alleged in defence that he was a protutor, and
that therefore the complaint was irregular, the Court, being satisfied that such
«~as not the fact, repelled the defence.
Angus McDonald presented a petition and complaint against Dec. 21. 1826.
the respondent in the character of factor loco tutoris upon 'his l8T Dlvl s
estate. In defence he objected, That although he had been ap- Lord Mcdwyn.
pointed factor loco tutoris for a special purpose, yet he, along s-
with certain -other persons, had been previously chosen by the
nearest relations to/act in the capacity of tutors ; that it was in
174 CASES DECIDED IN THE
this character, and not as factor loco tutoris, that he had acted ;
and therefore that the complaint ought to be dismissed.
To this it was answered, That his appointment as factor loco
tutoris was perfectly general ; that it superseded the former no-
mination ; and that he had intromitted in that capacity alone.
The Court, on the report of the Lord Ordinary, being satisfied
that he had acted as factor loco tutoris, repelled the objection.
H. Macqueen, W. S. — A. Stevenson, W. S. — Agents.
No, 108. * A. Borns, Petitioner. — Wilson.
P. IVf Kenzie, Respondent. — Skene.
«
Sequestration— Interim Factor.— A person who had been allowed by the creditors
to enter into possession of a sequestrated bankrupt's estate as interim factor,
without finding caution, ordained, pending a competition for the office of trustee,
to find caution, and ordered that, on his failure to do so, the management Bhould
devolve on the Sheriff-clerk of the county.
2d Division.
B.
Dec 21 1826 ^HE estates °f M'Aulay, lime-merchant and writer in Dum-
barton, having been sequestrated, a meeting was held for the elec-
tion of an interim factor, when each of two parties of the creditors
protested that their respective candidates, Burns the petitioner,
and M'Kenzie the respondent, had been duly elected. The latter
was, however, allowed to act and take possession of the bankrupt's
effects ; but no security was exacted from him by the creditors.
At the subsequent meeting for the election of a trustee, a majority
of the creditors voted for Burns ; but M'Kenzie, who was also a
candidate, contended that he was elected by a majority of legal
votes; and both parties presented petitions for confirmation, which
were, as usual, remitted to the Sheriff to report.
Pending the discussion in this disputed election, Burns pre-
sented a petition, stating that M'Kenzie, in his character of in*
terim factor, was proceeding to sell the bankrupt's effects, with-
out having found any caution, and praying to have the manage-
ment of the estate devolved on the Sheriff-clerk of the county.
The Court appointed M'Kenzie to find caution, as interim fac-
tor, to the satisfaction x>f the Sheriff, within four days, and ordered
that, on his failure so to do, the management of the estate should
devolve op the Sheriff-clerk.
W. Mercer, W. S. Agent,
COURT OF SESSION. 175
J. Papon, Suspender. — D. ofF. Moncreif—Cockbum. JJ0- jog.
Bank of Scotland, Chargers.— Skene— Walker.
Camti&ner >->GuA-Cre<iit Bond. — A Bank having granted a cash-credit, to be oper
ated on by a company consisting of three partners, on security of a bond to which
the company, and the individual partners as such, and as individuals, were par-
ties, and having continued to make advances to the company after the retirement
of one of the partners, duly notified in the Gazette, and specially to the Bank-
Held that tht retired partner was not liable under the bond for a balance aris-
ing on advances so made.
In the year 1816, J. and A. Tod and Company, of which Dec. si. 1&26.
the partners were, John Fadon, James Tod, and Andrew Tod, „ ~ ~
obtained from the Bank of Scotland a cash-credit to the extent |^# cringietie.
of £1000, in security of which a bond was granted to the Bank m K.
in the following terms : — ' We, James and Andrew Tod and
4 Company, merchants in Borrowstounness, as a copartnery,
' James Tod, merchant there, Andrew Tod, merchant there, and
4 John Padon, merchant there, as individual partners of the said
* copartnery, and as separate individuals; and we, Andrew Cowan,
' merchant in Glasgow, and John Cowan, brewer at Anderston
' near Glasgow : Whereas the Directors of the Bank of Scotland
4 have agreed to give us a cash-account or credit with the said
4 Bank to the extent of i?1000 sterling, in name of the said
* James and Andrew Tod and Company, in the books and at the
4 office of the said Bank in Edinburgh, or at such other office
4 thereof as the said Directors may afterwards appoint from time
4 to time ; therefore we hereby bind and oblige ourselves, con*
4 junctly and severally, and our heirs, executors, and successors
4 whatsoever, to make payment to the Governor and Company of
4 the Bank of Scotland, or to their assignees, of such sums, not
4 exceeding JP1000 sterling, as shall have been advanced by or
4 for the said Governor and Company, on the order or receipts of
4 the said James and Andrew Tod and Company, or as they shall
4 have become liable for to the said Governor and Company by
4 bills, promissory notes, or other obligations, with all or any of
4 which we hereby consent that the said cash-account may be
4 debited at any time during the liability foresaid, and to make
4 6uch payment whenever such payment shall be demanded after
* six months from the date hereof, with the lawful interest.'
In 1821 an advertisement was inserted in the Gazette, intimat-
ing that Padon had ceased to be a partner of J. and A. Tod and
Company, and that in future the concern would be carried on
under the same firm by the two other partners; and a special noti-
fication to the same effect was sent to the Bank, as was estab-
vol. v. M
176 CASES DECIDED IN THE
lished to the satisfaction of the Court in a proof taken in this
cause. At the date of this intimation, the balance against J.
and A. Tod and Company under the cash-credit amounted to
£788. The firm, however, still continued their operations, in
the course of which all the vouchers constituting that balance
were delivered up to the company, who in 1822 had drawn out
the whole amount of the credit. The Bank having thereupon inti-
mated to all die parties to the bond that they required the sum to
be paid up, Padon brought a suspension aB of a threatened charge,
on the ground,
1. That by the bond he had merely guaranteed those advances
which should be made by the Bank to that company of J. and A.
Tod and Company, of which he was a partner; but that the
Bank having gone on to make advances, after his retirement, to
what was in fact a different company from that stipulated in the
bond as the one to which the cash-credit was to be given, he was
not bound for any balance arising out of their operations; and,
8. That as to the balance due at the date of his retirement, it
had been extinguished, and the documents constituting it delivered
up or cancelled.
To this it was answered by the Bank,
1. That the manner of taking Padon and the other partners
bound not only as individual partners of J. and A. Tod and
Company, but also in their separate characters as individuals,
was intended by the parties to provide for the case of any of them
retiring from die company, and to ensure their liability notwith-
standing such an event, agreeably to what they averred to be the
general practice of all Banks in Scotland.
& That although in the case of a third party becoming bound
for a cash-credit granted to a company, he was not liable for
advances made after the retirement of a partner, seeing that be
thereby lost the benefit of recourse. against that partner, on which
he had calculated when he became bound; yet that in a case, like
the present, where the retiring partner himself had become bound,
not only as a partner, but as an individual, there was no such
ground for liberating him, as he could not state that he had lost
any security or recourse against a third party, he himself being
the' only partner who had retired.
3. That at all events, on the principle of the case of Houston
9. Speirs, the payments made by the company after Padon' s re*
tirement could not be imputed in extinction of the balance then
due, except in so far as they had at any time exceeded the ad*
vances subsequently made by the Bank ; and,
4. That there bad been no actual retirement by Padon from
OOUftT OP SESSION. 177
the company, but that the intimation to that effect was merely a
collusive device to avoid responsibility for their debts.
The Lord' Ordinary suspended the letters simpliciter, < reserv-
* ing to the chargers, if so advised, to subject the suspender oh
* the ground that he never retired from the company, and to hiifa
' his defences as accords ;' and the Court unanimously adhered.
Lord Jostice-Cleek. — It being perfectly clear that the balance, as
it stood at the date of Radon's retirement, has been extinguished, the
simple question remains, Whether, after a change of the partners of
the company for whose use die credit was granted, the cautioners
can be held liable for die transactions with a different company? And
I am dearly of opinion, that as the intimation to the Bank is suffi-
ciently proved, and as they subsequently continued to make advances
to a company quite distinct from that to which the credit was granted,
it is impossible to find the suspender liable.
Loan Glenlee. — Padon came under two distinct obligations,— -one
as a partner, and the other as a cautioner. The company to which
the advances were stipulated to be made, was described as composed
of three partners specially mentioned. On a change of partners,
therefore, h was incumbent on the Bank to ask the cautioners if
they were willing to continue bound for the new company ; and not
having done so, they are free* This rule must clearly apply to the
strangers who are cautioners, and I cannot distinguish between their
case and that of Padon-
Lord Alloway concurred, and observed that the case of Houston
v. Speirs did not apply to the circumstances of the present.
Low PiTNiUY likewise concurred.
Suspender's Authority.— V. Ben^ 545.
Chargers' Authorities, —bell, 1. 28*. and 2. 645; Speirs, June S3. 1823, (ante,
Vol. I. Nb. 666) ; Houston, June 26. 1824, (ante, Vol. III. No. 128.)
Gieiq and Panttifc W. S*— H. Davidson, W. S.— Agents.
I. and &. Austin, and their Tutor ad Litem, Pursuers. — No, 1J0.
JD. qfF. Moncreiff—Shaw.
D. Wallace and A. Dunn, Defenders. — Skene — Wilson.
•
Tutors and Cvretors— Title to Pursue. — 1 .—Tutors, who had Intromitted with their
pupils' effect* before making up inventories, removed a* suspect ; — and,— 2.—
The disclamation of the nearest of kin in an action for removing tutors no bar
to the title of the pupils, and a tutor ad litem to insist in it
^ •
This was an action originally raised at the instance of Dee. 21. 1826.
William, Isabella* and Samuel Austin, pupils, and also of their 2d d1vi8I0N.
mother, Mary Nixon, as their nearest of kin, for Ulfe purpose of Lord Mack en -
baring Wallace and Dunn, tutors nominated by their deceased *e •
m 2 F'
178 CASES DECIDED IN THE
father, removed as suspect on the ground, 1. That they were no-
tour bankrupts, having been repeatedly incarcerated for trifling
sums of money ; and, 2. That although they had not made up in-
ventories in terms of the act 1672, c. 2, for two years after the
death of the pupils7 father, they had nevertheless intromited with
part of the property of the pupils, and in particular had entered
on the management of a pottery belonging to them.
To this it was answered,
1. That they were ready to find caution ; and,
2. That although it was true that they had taken possession of
the pottery, yet they had now made up inventories.
The Lord Ordinary, after appointing Mr. Fisher tutor ad litem
to the children, found, ' that there is sufficient ground for remov-
* ing the defenders from their office of tutors,1 and decerned in the
removing accordingly. The defenders then reclaimed, and having
obtained from William Austin, who was now fourteen years of age,
and from the mother, a disclamation of the action, they contended
that there was no longer any title on the part of the remaining pur-
suers to carry on an action, of removing tutors as suspect; because,
1. The original instance of the mother, who had married a se-
cond husband, was inept, there having been no concurrence on
the part of her husband for his interest ; and,
2. At all events, she having now disclaimed the action, it must
fall, as it could not be carried on without the concurrence of a
co-tutor, or the pupil's nearest of kin.
To this it was answered,
1. That as it was merely the concurrence of the mother, as near-
est of kin, which was requisite, there was no necessity for her hus-
band's appearance in the process to validate that concurrence; and,
2. That the process having been regularly brought before the
Court, and a tutor ad litem having been appointed to the pupils,
he was entitled to carry on this action for their behoof.
The Court unanimously sustained the title, adhered to the
Lord Ordinary's interlocutor, and remitted to the Sheriff of La-
narkshire (where the pupils resided, and the property was situ-
ated,) to recommend a proper person to be appointed factor loco
tutoris, and thereafter nominated to that office the person so re-
commended.
Their Lordships were unanimously of opinion, that the cause having
been once brought before the Court, and a tutor ad litem appointed
to the pupils, the disclamation of one of them, and of the mother,
(as to whom it was only necessary that she should concur, the near-
est of kin in such cases not being domini litis,) could not prevent the
other pupils and their tutor ad litem from following out the action ;
COURT OF SESSION. 179
and, on the merits, that the defenders having intromited as tutors be -
fore they had made up inventories, it was imperative on the Court
to remove them.
Pursuers' Authorities.— 1672, c. 2; 1. Ersk. 7.21; Turnbull, Feb. 9.1698,(16317) ;
Gibson, July 2. 1680, (16299) ; Burnet, March 1685, (16307); Gibson, Dec. 21.
1811, (F.C.)
Defenders' Authorities.— Gibson v. Thomson, Dec. 21. 1811, (F. C.) ; Robb, Dec.
22. 1814, (F. C.)
C Fishbr, — J. Patison Jan. W. S. — Agents.
D. Wallace, Suspender. — Skene — Wilson. No. 111.
W. Anderson, Charger. — D. qfF. M oner eiff— Shaw.
Decree in Absence— Passive Tt/&.— Held,— 1.— That a decree against pupils and
their tutors, pronounced alter appearance of the pupils and one tutor, was not to
be held as a decree in absence as to another tutor who had not appeared ;— and,
— 2.^That intromission by a tutor before making up inventories, but which
were afterwards made up, did not subject him personally in payment of debts
affecting the estate.
The late John Austin, by his deed of settlement, conveyed all Dec. 21. 1826.
his property to Mary Nixon, his wife, and to his children ; to the 2d Division.
latter of whom he nominated the suspender Wallace and Archi- Lord Mackcn-
bald Dunn tutors and curators. Some time before his death, he *ie*
__ p
had granted to one Lashlie a bill for jPSO. This bill having
passed into the hands of the charger Anderson, he raised an
action thereon before the Sheriff of Lanark, concluding for pay-
ment against Mary Nixon, (the mother,) William, Isabella, and
Samuel Austin, (the children,) Archibald Dunn and David
Wallace, all conjunctly and severally, ' as representing the said
* John Austin sub titulis passivism
Defences were lodged to this action in name of the widow and
children, and of Dunn; but not in name of Wallace. After some
procedure, the Sheriff decerned in general terms against all the
defenders, except Dunn ; and on this decree Anderson charged
the several parties, and was proceeding to poind certain effects of
the deceased, when a bill of suspension was presented by Wallace,
on the ground that the decree against him had been pronounced
in absence, and praying that the cause might be remitted to the
Sheriff, as being a decree in absence.
The bill having been passed, (see ante, Vol. III. No. 870,) and
the letters expede, the suspender, besides his plea on the head of
absence, contended, on the merits, that there were no grounds for
rendering him liable for the debts of the deceased.
For the charger it was pleaded,
180 CASES DECIDED IN THE
1. That the decree could not be considered as 19 absence.
2. That in so far as regarded the poinding, which was executed,
not against the suspender s effects, but against those of the de-
ceased John Austin, he had no title to interfere in his own name
alone; and,
3. That the suspender had rendered himself personally liable
by his intromission with the effects of the deceased, without hav-
ing made up inventories as tutor.
The Lord Ordinary found, ' thai in the circumstances of this
' case it is not possible to make a simple remit to the Sheriff, as
' in cases of decreets in absence ; — that the decreet complained of
4 is ambiguous in one respect, namely, in so far as it decerns
* against the complainer, without limiting the decernitute Against
* him to his capacity of tutor and curator to the children of the
< deceased John Austin, although it does not appear that he was
'.otherwise personally liable in the debt decerned for ;-— that to
( this extent it appears competent for the complainer to apply in
' his own name alone for suspension of said decreet.* His Lord-
ship therefore suspended ' the said decreet, in so far as it contains
' any decerniture against the said complainer personally ; but,
* quo§d ultra,' found * that this suspension, being in the name of
' the complainer alone as an individual, appears incompetent ;"*
and therefore dismissed the same, finding no expenses due to
either party.
Against this interlocutor both parties reclaimed'; but the Court
unanimously adhered.
Suspender's Authority.— 3. Ersk. 9. 62.
Charger's Authorities.— 3. Stair, 9. 3 ; 3. Ersk. 0. 48.
J. Patison Jun. W. S. — C. Fishbe, — Agent*.
No. 112* Duke of Queensberry's Executors, Pursuers. — RutherfisriL
C. Tait, Defender— raft.
Interest— Agent and CHent.—In an accounting between an agent and hit employer,
the Court allowed the balances to be struck annually, so as to charge compound ,
Interest, and also the interest of an heritable debt retained in security of certain
obligations of warrandice to be annually accumulated in the same way.
Dec. SI. 1896. I* the action mentioned ante, Vol. I. No. 486, (which see,) the
So Division Court remitted to Mr. Brown, an accountant, to report on the
Lord Pitmiily. siaie of accounts and alleged overcharges by Mf. Tait and his
B. father, as law agents for the late Duke of Queensberry. Mir.
Brown accordingly gave in a report; in which he taxed off a coo*
COURT OP SESSION. 181
fliderable sum, and struck an annual balance on the accounts,
charging interest on each balance, which again entered into the
next year's account, thus becoming subject to the operation of
strict compound interest ; and in regard to an heritable debt due
by Mr. Tait to the late Duke, (yrhich Mr. Tail was held en-
titled to retain in security of obligations of warrandice come
under by him to the Queensberry tenants,) he made an annual
accumulation of interest at 3 per cent. This report was approved
of by the Lord Ordinary ; but Mr. Tut reclaimed against his
Lordship's interlocutor, and stated various objections to the ac-
countant's report, and in particular to the annual accumulation
of the interest on the heritable debt ; but he did not rest any ob-
jection as to the method of calculating interest on the accounts*
current.
The Court, in reference to the heritable debt, ultimately found
thai it « fell to be accumulated annually from and after the 11th
* day of July 1817, the date of the last accumulation of interest,
* and that at the rate of interest allowed for the time by the pub-
( fie chartered banks upon deposit accounts;' and in regard to
certain other objections, their Lordships remitted to Mr. Aytoun,
writer to the signet, along with Mr. Brown, to report on the
amount taxed off by the latter from Mr. Tait's law accounts.
On receiving their reports, the Court approved of Mr. Brown's
c report as amended in his additional report, with the additional
* allowances recommended in the report of Mr. Aytoun,'— and
thereafter they remitted again to Mr. Brown to alter his report
agreeably thereto. Mr. Brown did so accordingly in an amended
report, in which, in regard to the heritable debt, the interest was
accumulated annually since 1817, and interest charged on the
balance so accumulated, such interest being added to the next
year's balance, and interest charged thereon as one accumulated
principal sum.; and in regard to the other accounts, the balances
were struck annually, and interest charged, as had been done in
the original report, with this difference, that he had added thereto
progressive interest, accumulated on the same principle, on the .
•pvtnl taxations ultimately sustained by the Court, (extending
to £S86Sf} which progressive interest on the taxations amounted
to<£8054*
To thia report Mr. Tait lodged, objections, in which be con-
taurine!
1. That the sort of accumulation omtbe heritage debt adopted
by th* accountant was not sanctioned^ by the interlocutor of the
Court, the meaning of which was, that each year's interest was to
be accumulated, so as to form a ftqpd bearing simple interest,*—
182 CASES DECIDED IN THE
not that this interest on interest should be annually accumulated,
so as to yield the strictest compound interest ; and, ,
% In regard to the interest on the accounts-current, that strict
compound interest was never allowed on mere personal debts, par-
ticularly cm such debts as the taxations, which were in fact illi-
quid claims until the judgment of the Court by which they were
allowed.
To this it was answered, .
1. That the method of charging interest on the heritable debt
proposed by Mr. Tait would not be accumulation at all, which
necessarily implied the forming all the interest, whether simple
or upon interest, into one accumulated balance, itself bearing in-
terest ; and that this was truly intended by the Court, because
Mr. Tait, retaining the debt for security merely, was not entitled
to make any profit thereby, but was bound to restore it to the
creditor, with all the benefit which he might have derived, had it
been paid in due time ; and,
2. That the only mode of charging interest on accounts-current
was by means of striking an annual balance ; and at any rate that
it was incompetent for Mr. Tait now to object to this mode of
charging interest, as it had been so charged in the original report,
which was approved of by the Lord Ordinary, and afterwards by
the Court, without any objection or reclaiming petition on this
ground.
The Court repelled the objections, finally approved of the ac-
countant's report as now amended, and decerned for the balance
thereby brought out.
Loan Justicb-Clerk. — I thought it neccessary to look back to the
former proceedings as to the heritable debt, and to what passed on
the Bench, of which I hare notes, and I see that the same general
argument was used, when the question of accumulation was before
us, which is repeated now ; but we were convinced that annual ac-
cumulation should be allowed in the manner which has been done by
the accountant, and the grounds on which we proceeded were these :
A debt was demanded by the creditor : The answer made was, I am
ready to pay, with interest, if relieved of the obligation of warrandice.
But then it was replied, that if effect was to be given to the plea of
retention, all that the debtor could ask, was to retain for his security;
he was not to profit by it, and convert the interest into a fund from
which he might himself draw interest or profit, but was bound to
accumulate it annually; and so we decided. It is a great deal too
late1 to go back on this judgment now ; but, even were it open, the
. same argument which prevailed formerly would prevail now. The
next point is tfce application of this rule to the personal debt ; and it
COURT OF SESSION. 18S
is rightly applied to this also, because Mr. Tait, as an agent, must be
subject to the ordinary rule that an agent's accounts fall to be settled
annually ; and .the accountant has merely proceeded on the supposi-
tion of this haying been done. If Mr. Tait had been the creditor at
these annual balances, be would hare hdd the benefit of this principle ;
bat, as the balance stood against him, he must bear the loss.
Lord Allow ay. — Not having been in this Court when the judgments
relative to the accumulation of the heritable debt were pronounced,
I can only state my opinion as a doubt whether the words of these
judgments sanction the mode of accumulation here adopted. I thought
that it only meant to allow simple interest to be charged on each
year's interest ; for, supposing the creditor had adjudged in 1817,
nothing more could have been awarded than the accumulated sum
at the term of the adjudication, which would only hare borne simple
interest ; and I do not see why he should be on a better footing now.
On the same principle, I doubt the propriety of the accumulation
on the accounts-current, which do not mil under the judgment of
the Court allowing accumulation as to the heritable debt. I never
saw compound interest allowed in any case, and I cannot conceive
bow it should be allowed on accounts-current, especially as the
party believed these accounts to be settled, and as, in regard to a
great part of the debt, it was impossible to say, till very lately, on
which side the balance lay.
Lord Glenlee. — I did not imagine that we were to go into the prin-
ciples on which the accumulation was formerly allowed on the herit-
able debt ; for, looking at the words of the judgment, I think the ac-
countant has put a correct interpretation upon it. And as to the
accounts-current, when we approved of the report, we approved of the
principle of accumulation adopted in it, and the party is now barred
from objecting to it.
Lord Pitmilly concurred with Lords Justice-Clerk and Glenlee.
John Gibson, W. 8*— W. Clark, W. S. — Agents,
R. Murray, Complainer. — D. ofF. Moncreiff^—FuBerion. No. 113.
W. Thomson, Respondent. — Sol.-Gen. Hope — Henderson.
Skeriff-Cierk's Fees— A. S. March 16. 1748— Expense*— 1.— Repetition ordered
of overcharges of Sberiff-ckrk's fees not sanctioned by A. S. March 16. 1748 ; —
but, — 2. — Expenses refused, in respect of the party not having applied in the
first instance to the Sheriff, and of his having concluded for removal or censure
of the Clerk, as to which he had no title.
In a petition and complaint at the instance of Murray, a pro- Dec. 22. 1826.
curator before the Sheriff-court of Dumfries, against Thomson g ~ —
the Sheriff-clerk, for exacting other and higher fees than were p.
authorized by the act of sederunt March 16. 1748, be objected
to the following charges : —
181 CASES DECIDED IN THE
1. A charge of Is. as the fee of summary petitions, levied on the
ground that such petitions must be consJdfered as summonses;
and 4s. as the dues of extracting the petition and warrant of ser-
vice, which was never done in practice ; and also a fee of 2d. to
the clerks. The ground of objection was, that the act of sede-
runt only allowed for a ' petition* 6s. Scots ; and that the only
extracts allowed were those of * decreets, acts, or commissions,*
which, it was contended, did not include a warrant of service on
a summary petition.
. 2. A charge on sequestrations^ varying from 3s. 6d. to £l9
according to the amount of the rent, in addition to the fee on
the petition and of extract, founded on the allowance in the act
of sederunt,—* For sequestration of a bankrupt tenant's effects,
* such a sum as shall be judged reasonable by the Sheriff, the
4 highest not exceeding £\9> Scots, the lowest not under £3
4 Scots." This was objected to, on the ground that the fee was
only for die actual execution of the warrant to sequestrate.
8. A fee for registering protests, as being beyond that al-
lowed by the act of sederunt, which was only 14s. 6d. Scots ;
and,
4. A charge for extracts, as being constantly for a greater
number of pages than were warranted by the act of sederunt,
which requires that each page should contain 36 lines at the rate
of 13 words in the line.
The complaint having been remitted to Sir Thomas Kirk-
patrick. Sheriff of Dumfries-shire, as mentioned ante, Vol. III.
No. 280, (which see,) to report on these charges, he reported,
1. That summary petitions were not to be oonsadered as sum-
monses, but were chargeable only with CkL as petitions ;— that
the warrant of service of such petitions was an * act' on which the
Sheriff-clerk was entitled to charge the fees of extract ; and that
the charge of 2d. was not sanctioned by the act of sederunt, but
had been consented to be given to the clerks of the office for their
writings, by an agreement to that effect signed by several of the
procurators, and among others by tbe oomplainac
2. That, according to the true construction of the act of sede-
runt, the term ' sequestration* in this provision meant the actual
execution of the warrant ; and that this fee should not be al-
lowed on the mere passing of the warrant
3. That the legal fee for registering a protest is Is. 2$d. ; and,
4. That the charges for extracts, in so far as the pages did not
contain the number of words required by the act of sederunt,
must be disallowed.
Sir Thomas further reported that on these principles the over-
COURT OP SESSION. 185*
charges for which the complainer was entitled to repetition
amounted to £5 : 7 : 8}.
The Court unanimously approved of this report, and decerned
in repetition in terms thereof, except as to the charge of 2d. to
•the clerks, where the extracts were actually written, from claim-
ing repetition of which they found Murray barred personali ex-
oeptione ; and under all die circumstances of Murray having
complained to this Court, instead of applying in the first instance
to the Sheriff, — having concluded for censure and removal from
office, as to which he had no title,— their Lordships found that
he was not entitled to expenses.
*
E. Wabajii— J. Thorbur*,— Agents.
J. Bye and Attorneys, Pursuers. —Vamiwn. No. 114.
II. Thornton, Defender.— -Buchanan — Ivory.
TuM Court altered an interlocutor of the Lord Ordinary sub* Dec. 22.1826.
taining an objection to the title to pursue, repelled the objection,- 2o Division.
and remitted to his Lordship to proceed accordingly Lord Macken-
lie*
Oomaumou and Ramsay, W, S, — Ramsay and Imjus, — Agents, F*
A. Alexander, Advocator.— More. No. 115.
R* Pihxutoh, Respondent.— Afap*?r.
>Parish, — Circumstances in which an heritor was found liable in pay.
ment of arrears of schoolmaster's salary for eleven years, notwithstanding his
baring paid salary for'the same lands in another parish during that period, and
fat upwards of a century before.
The lands of Boydstone, belonging to Alexander, originally Dec. 22. 1826.
formed part of the barony of Kilbride, and were admitted to have 2 TT
been situated, prior to 1650* in the parish of Kilbride ; and they l^ Macken-
itaU appeared* in the cess-books of the county, as rated i* that zie-
parish, in the cmnulo valuation of the barony. By minutes of x MK"
U>e presbytery of Irvine in 1640, it appeared that perambulators,
appointed to consider how far the bounds of die several parishes
in the presbytery were conveniently fixed, had reported that the
kmb. of Mountfod* Boydstofie, and Knockewart should be dis-
joined from Kilbride, and annexed to the neighbouring parish of
Axdrossan. Some objection was stated to this proposal in regard
to Boydatone by nhe then proprietor Lord Boyd, as to the dgter*
186 CASES DECIDED IN THE
mination on which there was an entry in the minutes ; but it was
subsequently resolved by the presbytery that certain of the
brethren ' should go east to plead before the Commissioners of
' Plantations for augmentation and demembration" of the three
properties, Boydstone included. There was, however, no evi-
dence produced of any decree of disjunction and annexation,
in consequence, as Alexander alleged, of the destruction of the
Teind Court records in 1700 by fire ; but it was admitted that
the lands of Mountfod and Knockewart were now considered as
annexed, quoad omnia, to Ardrossan ; and it appeared from the
minutes of presbytery that from 1740 downwards the lands of
Boydstone had been assessed, as in the parish of Ardrossan, for
the several parochial burdens regarding the church, manse, &c.
The lands of Boydstone were also stated to be in the parish of
Ardrossan in Alexander's titles, commencing with a feu-charter
in 1759- The schoolmaster's salary had likewise been con-
stantly paid to Ardrossan from the date of the statute 1696; and
road-money in the same way, with some slight exceptions, had
also been paid in Ardrossan; while, on the other- hand, the sti-
pend effeiring to the lands of Boydstone had always been paid to
Kilbride ; and these lands were localled on, as in that parish, in
two augmentations of stipend in later times.
In this situation Pinkerton, the respondent, was appointed
schoolmaster of Ardrossan in 1809, and received from the heri-
tors, as the rule for levying his salary, a roll of the parish, con-
taining the valuations of the several lands in the parish, including
Boydstone, but without the proportion of salary payable by each
being set down. Agreeably to this roll, he continued to draw
his salary till his resignation in 1820, — he himself calculating the
amount of salary effeiring to the valuation of each, on the ground
of Boydstone being truly in the parish ; but he never received
any payment for these lands from Alexander, who continued to
pay the schoolmaster of Ardrossan, although Pinkerton drew
the salary from other lands of Alexander admitted to be in
Kilbride. It was alleged, however, that demands had been
made for payment of the salary from Boydstone; but this
was denied, and there was no evidence as to how the fact really
stood.
After Pinkerton had given up the office in 1820, he raised the
present action before the Sheriff of Ayrshire, concluding for
payment of about jPIO, as the arrears of salary for the lands of
Boydstone since 1809, the period of his appointment as school-
master, together with the double penalty authorized by the act
1696, confirmed by the 43d Geo: III. c. 54. The Sheriff having
COURT OF SESSION. 187
decerned for payment of the salary and penalty, Alexander
brought an advocation, in which' he contended,
1. That there was sufficient evidence of his lands having been
disjoined from Kilbride, and annexed to Ardrossan, quoad om-
nia.
2. That it was incompetent for the schoolmaster to bring an ac-
tion of this kind, which went to invert the state of possession en-
joyed for upwards of a century, particularly without calling the
parties interested belonging to the parish of Ardrossan.
& That having, during the period for which the arrears were
claimed, paid salary for the lands of Boydstpne to the schoolmas-
ter of Ardrossan, bona fide believing that they lay in that parish,
he could not be called on now to repeat ; and that Pinkerton
was barred personali exceptione from claiming repetition, not
baying proved that he had made any demand during the period
of his incumbency, notwithstanding his knowledge of the pay-
ments having been made in the parish of Ardrossan ; and,
4. That at all events, he could not be subjected in the penalty,
having been, as he alleged, in perfect bonfi fide, and the certifi-
cate of valuation furnished to the schoolmaster not being a re-
gular stent-roll made up by a meeting of heritors, in terms of
the act 1696, and not assessing each heritor in the sum of salary
to be paid by him, but merely ascertaining their respective valua-
tions.
The Lord Ordinary advocated the cause, found * the advocator
* liable in the sum of school salary libelled in the original sum-
' mons simply, but not to the double thereof,9 — and found no ex-
penses due. To this interlocutor his Lordship added the follow-
ing note : — ' Besides the plea in equity against the penal claim
* for the double of the proportion of school salary, there is in this
' case a plea under the strict words of the statute 1696 itself; for
* it does not appear that the proportion of salary payable by the
' defender was ever stented and laid on by the heritors in form, as
c the statute requires, which seems necessary before the penalty
* of double payment can be insisted for in terms of the statute.
' It does not seem possible for the respondent, especially while
' pleading himself the strict words of the statute against the ad-
' vocator's plea of bona fides, to claim a penalty by a literal con-
' struction of that very statute. The lands, however, seem to be
' in the parish of Kilbride, except quoad sacra. In particular,
' the Lord Ordinary sees no evidence of payment of any stipend,
4 either old stipend or augmented stipend, in Ardrossan ; and it
* does not seem to the Lord Ordinary that payment of school-
' matter's salary in a wrong .parish, though made bona fide, af-
fords a defence against payment in a right one.1
188 CASES DECIDED IN THE
Pinkerton acquiesced in the Lord Ordinary's interlocutor in
90 far as it refused his demand far the penalty, but 'reclaimed
in so far as he was not allowed his expenses ; and Alexander
having also reclaimed tm the merits, the Court allowed Pin-
kerton a diligence for recovery of certain documents in further
support of his claim. Under this diligence were recovered cer-
tain minutes of the heritors of Kilbride, and other papers, the
import of which wad allowed to be stated at the Bar, without
printing the documents themselves, in respect of Pinkerton m
being on the poor's roll. From these it appeared, that at a meet- |
ing of the heritors of Kilbride, at which Alexander was present,
held on the 3d January 1805, during the incumbency of Pin-
k£rfon's predecessor; one of their number had been appointed to
draw up a stent-roll of the parish under the act ttf Parliament
43d Geo. III. c. 54, for the express purpose of forming the rule
for levying the schoolmaster's salary ; and that, on his report, a
subsequent meeting had approved of and adopted the stent-roll,
which had been delivered to Pinkerton at his appointment, signed ,
by the preses of the meeting, and in virtue of which he had al- \
ways levied his salary. It further appeared, that in 1816 the . K
heritors had raised a summons against Alexander for payment of
his share of the expense of building a manse &c, in respect of
his lands of Boydstone, on the ground that they were situated
in Kilbride, and that he had paid these dues in consequence;
and also, that in a petition presented by him the same year to the
Commissioners of Supply for division of a cumulo valuation, he
stated his lands of Boydstone to be in Kilbride, and that they
had been annexed to Ardrossan quoad sacra.
The Court unanimously adhered to the Lord Ordinary's inter-
locutor on the merits, and altered as to expenses, in which they
found Alexander liable.
Lord Glbnlke*— This action is brought on the statute 1696, which
is imperative that the heritors are to stent themselves. If the stent-
roll made up by them be complete, the schoolmaster does not require
to go the Sheriff at all ; — he may at once charge for payment.. If a
regular stent-roll be made up by the heritors, he is entitled to de-
mand payment under it ; and if the heritors ftril to make it up, his
remedy is by application to the Commissioners of Supply. Now it
is plain that a regular stent-roll was made up here; a previous meet-
ing of heritors remitted to Mr. Hunter to draw it up, and a second
meeting approved of it ; and though each man's share is not speci-
fied, yet it mentions according to what valuation each is tt> pay. I
conceive, therefore, that it is perfectly regular under the statufce';
and this being the case, Mr. Alexander must pay the
in the mean time, and get redress the best way he can.
1
COUBT OF SESSION. 189
Lord Pituu.ii eonctnrad.
Load Ai^owat. — Till I heard the documents now read from the Bar,
I thought that we most hare gone on the general principle ; in which
case the question would have been, What, evidence is there that the
lands of Boydstone were detached from. Kilbride, of which it is ad-
mitted they were once a part ? And as to this, I think there is no
evidence of a disjunction quoad civilia ; so that, even on the general
principle, I would hare held Alexander liable. But now that do-
cuments are produced, showing that a stent-roll was prepared at a
meeting of heritors, at which he was present, I cannot entertain a
doubt on the subject. The heritors are not obliged to cast up the
sum payable by each. It is quite enough, if they fix the valuation
according to which it is to be paid*
Load Jostxcs-Cluk— - —I entirely concur; The documents now
produced remove all possibility of doubt. The scboolasaalc i has
been all along in bona fide, and his demand ought to have been com-
plied with. The stent-roll was made up according to. the cess-roll
of the county ; and Mr. Alexander himself, in his petition to the
county in 1816, states the lands of Boydstone to be annexed to
\ Ardrossan only quoad sacra.
W. Pateicx, W. 8.— R. Urquhaet, — Agents.
T. M'Kbnzie, Advocator.— Auon. No. 116.
Jaxx Smith, RespoodenL—Whigham.
Pr^^SemipiefMT^ohtth'e^Basfy^.^^YTCuinataiict» under which It was held,
that the payment of a sum of money by a married man to a woman who oharged
him with being ths father of her bastard child, in consideration of receiving from
her a declaration that he was not so, constituted a semiplena probatio, and en-
titled her to her oath, in supplement.
The respondent Jane Smith brought an action before the Dec. S3. 1826.
Justices of Peace for the county of Haddington against AT Ken* l8T DlvmoK
rie, alleging that he was the father of her bastard child, and con- Lord Eidin.'
eluding for aliment. In support of this action she stated, that in D.
the end of March 1820 she called at a druggist'B shop in Edin-
burgh, kept bj the father of M'Kenzie, and in which he was then
an assistant, to get some medicine ; — that M'Kenzie, after giving
her some, which was found not to have been beneficial, repeatedly
came to see her ai her own house, and that in this way they had
become acquainted ; — that, under the pretence that be meant to
teach her the art of midwifery, he carried her to Burntsfield
Links* and thereafter to the King's Park, where they had carnal
connexion in the open fields; but she did not allege that any such
intercourse had taken place in her own house ;— that she then
went to Inverness, where the child waa born in December 1820 ;
190 CASES DECIDED IN THE
and in the summer of the following year she came to Edinburgh,
and went to the same shop, where she found M'Kenzie and a Dr.
Young ; — that she then charged M'Kenzie with being the father
of the child, and he having give? no satisfaction, she went to his
private house in the country, where he paid her twenty shillings*
and afterwards £%0> on account of the claim which she had made
against him.
In defence, M'Kenzie denied that he was the father of the
child, or that he had ever seen the woman till she called with
the child in the summer of 1821 at the shop, when she did not
allege that he was the father ;— -that, on the contrary, it appear-
ed that she had employed a writer from Dingwall, who happened
to be in Edinburgh, to write a letter to Dr. Young, charging him
with being the father of the child ; and that he having resisted
her demands, and having learned that M'Kenzie was a married
man, she, with the view of compelling him to give her money, al-
leged that he, and not Dr. Young, was the father ; — that in or-
der to purchase the peace of himself and of his family, he agreed
to give her £209 on condition that she would subscribe the fol-
lowing letter, which she accordingly did with her mark, in pre-
sence of witnesses :— * I am sorry that, through mistake, I hap-
* pened to charge you with being the father of an illegitimate
* child brought forth by me on or about the 34th of December
' last. I therefore hereby declare, for the satisfaction of you and
( your friends, that you are not the father of the said child.1
She admitted that this letter was written by the agent she had
instructed to write to Dr. Young — that he subscribed it as a wit-
ness— that the money was thereupon paid — a receipt given by that
agent — and that the greater* part of it had been received by her
from him ; but she alleged that he was a person who h$d volun-
teered his services — that she was not previously acquainted with
him — that the letter had not been explained to her— that she
had understood that the money had been paid in name of ali-
ment— and that being now exhausted, she was entitled to an ad-
ditional sum. M'Kenzie, however, offered to prove that the
agent was duly authorized by her, and that the letter bad been
read and fully explained to her. The Justices, without allow-
ing any additional proof, and being chiefly influenced by the
payments made by M'Kenzie, allowed Smith to depone in sup-,
plement.
Of this judgment M'Kenzie brought an advocation, and con-
tended that as the only circumstance on which the parties were
agreed was the payment of the money, and as it was established
by Smith's own letter that it bad been paid merely to buy bis
COURT OP SESSION. 191
peace, and not' as recognising the validity of the claim, it not only
was not sufficient to constitute a semiplena probatio, but was a
.complete contradiction of her allegation.
To this it was answered, That if M'Kenzie had been satisfied
that he was innocent of the charge against him, he would never
"have paid such a sum for the purpose alleged, or taken a dis-
charge of thr claim against him as father of the child; that in
truth it was paid as an acknowledgment of the fact, and the letter
had been framed under his own inspection ; that he did not deny
that he had previously paid her twenty shillings at his country-
house, or that he had then alleged that he was not the father ;
<and she contended that even although she had entered into such
& transaction, it was not legally binding*
The Lord Ordinary advocated the cause, and assoilzied M'Ken-
zie; but the Court altered, remitted simpliciter, and found ex-
penses due.
Lord Gillibs. — I think the interlocutor of the Justices quite right
It is not denied that M'Kenzie was accused in the shop of being
the father. The charge against Young was made under mistake by
a person who volunteered his services as agent, and she afterwards
explained that it was M*Kenrie, and not Young, whom she meant.
Accordingly it is M'Kenzie who transacts with her, and pays the
£20. In my opinion, the disclamation obtained from her affords
strong evidence that he was the father of the child, and that he
procured it, in order to avoid any investigation into the truth of the
Loan PusiDxmv— If, as M'Kensie alleges, he was acting under the
influence of securing the peace of his family, he ought to have fol-
lowed Dr. Young's example, by resisting her demands. He seems,
however, to have been satisfied that she had fixed on the right man-
Loan Cr^igib^— Coinproiniaes of threatened claims should not be re-
garded, either on one side or the other, in determining as to the truth
of an allegation ; but it is not alleged that the payment of the twenty
shillings was of this description ; and this circumstance is very strong
against M'Kenzie. It is also somewhat extraordinary that M'Kenzie
should pay anything to the woman, after he knew that she bad
charged Dr. Young with being the father. This looks extremely
like conscious guilt ; but I think there should be a further investiga-
tion, and that both he and Dr. Young ought to be examined.
P. Hewat, W. 8.— Murray and Inglis, W. S. — Agents,
vol. v. u
192 CABES DECIDED IN THE
No. 117* A. Ross, (Trustee on D. LbnxokV Sequestrated Estate,) Sn*
pender.— Sol-Gm. Hope — Ruiherfurd-^Roberison.
Equitable Loan Company of Scotland, Cbargers.<-*-»lX qf F.
Mortcreyf^Greehthtekb*
Pawnbroker* Jct—Prones**— 1.— The Court paused a bill of suspension and inter,
diet, presented by the trustee on a bankrupt estate, against the sale of goods lm-
pledged by the bankrupt with the view of defrauding his credu-ors,— the money
lent on them haying been advanced, although an tickets of jtfie each, in sums to
a much larger amount on tingle pledges-— 3.- "Held incompetent in the BiU-
Chamber to grant warrant for inspection of goods impleaded.
Dec. 23. 1826. ; Lennox, a merchant or shopkeeper m Perth, having applied,
2d Division, under the name of Robert Scott, to the Equitable Loan Cora-
Bill-Chamber, pany of Scotland, an extensive pawnbroking establishment in
Lord Newton. Edinburgh,* for loans of money on the security of goods to be
deposited with them in pawn, they made advances to him to the
extent of about £1150 under that and several other fictitious
names adopted in the course of their transactions. So far as
appeared, the company were not aware of what his real name
was, or that the name of Scott, in which he had originally ap-
plied, was feigned ; but they knew that all the other names, ex-
cept that of Scott, were adopted for the purpose of concealment.
The advance* Were made oa security pf large assortments of
haberdashery goods, &c* transmitted to the company, (on some
occasions, through indirect channels, and without the original
packages, as obtained by him from the manufatfttirer* having
been opened) ; and although the amount lent was divided into
numerous sums of ^10 each, with- corresponding tickets* to bring
the transaction under: the Pawnbrokers9 Act, yet several of these
tickets were frequently given on one unbroken piece of cloth or
single package; so that £40 or £50+ or even in some instances
£150 and upwards, were advanced on a tingle unbroken package
or uncut piece of cloth.
Lennox, having become bankrupt, endeavoured to conceal from
his creditors the circumstance of his possessing these goods in pawn
with the Equitable Company. The company, however, having dis-
covered that he was the person to whom they had made advances
under the name of Scott, gave information to his creditors*, who
immediately took out a sequestration against him, in which Ross
was appointed trustee. Shortly thereafter Ross demanded access
• It was stated by the counsel for the company, that in a single month 1 1 >254
pledges had been received, and 8456 redeemed j and that, in the course of the last
twelve months, .£40,000 had been advanced on pledges, of which £39,000 had
redeemed.
COURT OF SESSION. 198
to the unpledged goods belonging u> the bankrupt, with the view
of ascertaining what, it would be advisable on the part of tht
creditors to redeem. This, however, was resisted by the com*
pony, who further intimated an intention to sell the goods. Ross
then presented a bill of suspension and interdict, praying for au-
thority to inspect the goods, and to have the company prohibited
from proceeding with the sale, on the ground,
1. That this mode of making advances was not warranted by
the Pawnbrokers* Act, which was intended not to sanction the
extensive species of traffic which had been carried on, but to en*
able poor persons to obtain advances to an extent not exceeding
j£10 on any single pledge, and therefore that the company had no
right to proceed to a sale, which they could only do in virtue of
that act; and,
£• That at any rate they were not entitled to refuse access, for
the purpose of inspection, to any person who had pledged goods
with them.
The Lord Ordinary refused the bill ; but the Court unanimous-
ly altered, and remitted to pass it, and grant the interdict, reserv-
ing to Ross to apply to the Judge Ordinary, or to the Lord Or-
dinary, on the expede letters coming before him, for warrant to
inspect the goods, which their Lordships held it incompetent to
grant in the Bill-Chamber.
•
T. JomrsTOirx, — W. Duncak, W. S. — Agents.
W. Pet eh, Pursuer.— Jeffrey — Rusaett. No. 118.
W. Mitchell and W. Weir, Defenders.— McNeill— J. Hen-
derson Jun.
Ptooet9 g. Gm. IV, c *2fc— <Jirannrtance« in which a document snot produced
with the tummoQfl wm held not to be in the pursuer's * cut tody, or within his
* power,' under the meaning of the above statute*
In a summons raised by Peter against Mitchell and Weir, Dec. 23. 18£6.
he founded on a bill of exchange which was not produced with. 2|) division.
the summons. Defences having been returned, he craved a dili- Ld. Cringletie.
gence, under which he recovered this bill out of the hands of a
person who had at one time been his agent in a relative process
before tbe Sheriff Court of Dumbarton. The defenders were then
allowed to give in additional defences ; and having done so, they
craved the expense of their original defences, on the ground that
Peter ought to have produced the hill with his summons. This
was opposed by Peter, who contended that the bill was not, in
terms of the act of Parliament, < in his custody, or within his
v9
194 CASES DECIDED IN THE
4 power ;' and he offered to prove that, before bringing his action,
he had applied to his former agent, through the person who was
now his agent at Dumbarton, for this bill, but without success;
and consequently that he could not recover it except by means of
a diligence when his action came into Court.
The Lord Ordinary, however, awarded to the defenders the
expenses of the original defences, and allowed interim decree to
go out for them. Peter then reclaimed, and produced a letter
which supported the averment made before the Lord Ordinary,
that he had applied unsuccessfully for this bill before raising the
action ; whereupon the Court altered his Lordship's interlocutor,
and repelled the claim for expenses.
Loan Allow at. — If it had been shown to the Lord Ordinary thai
the document was not within the pursuer's power, then the interlo-
cutor would be wrong. But, till the letter now read at the bar was
produced, there was no evidence of this ; and, till proved to be other-
wise, it must be held thaf a document in the hands of an agent is
within the power of the client. Besides, the pursuer might have ap-
plied to the Sheriff for a warrant to recover the bill, and he ought to
have done so before raising his summons, whereby the expense of the
diligence would have been rendered unnecessary. In this view, there-
fore, I think the Lord Ordinary's interlocutor is right.
Lord Pitmillt. — I am very unwilling to interfere with the Lord Or-
dinary in matters of this kind, but I do not think that his Lordship's
interlocutor is well founded. An application to the Sheriff would be
like an action of exhibition ; and I think it a much better way, and
the least expensive, to raise the summons first, and then get a dili-
gence. It was only under the diligence that the bill was recovered ;
and the legitimate inference is, that it could not be had without it.
The Act therefore does not apply here.
Lord Justice-Clerk. — I likewise entertain the utmost reluctance
to interfere with the Lord Ordinary ; but when a question is raised
on the construction of the Statute, which our Act of Sederunt cannot
affect or alter, it becomes important. We must undoubtedly give
due effect to the Act of Parliament, and ought always to enforce the
penalties in it when incurred. But, looking to the Act, I do not think
it means that a party, before bringing his action, must raise a sum-
mary process in the Inferior Court to recover the documents on which
he is to found, fend thus perhaps lead to a long litigation, in the
course of which the document, if a bill, may prescribe before he can
bring his action. The meaning of the Statute seems merely to be,
that a party must produce with his summons all documents in hid
custody, or which he can obtain without legal compulsitor; and in
this case I do not think that the bill was in the pursuer's ' custody,
' or within his power,' under the meaning of the Statute. If no
COURT OF SESSION. 195
tenpt had been isads to get t be bill before bringing the action, the
penalty might perhaps have been enforced ; but we flee that there
had been such an application, which was unsuccessful ; and although
the evidence of that was not before the Lord Ordinary, that was ow-
ing to his Lordship not allowing any time to obtain the letter now
produced.
J, Crawfoed, W. SL-J. G. Hopkirk, W. S— Campbbll and Mac-
dowall, — Agents.
ACT OF SEDERUNT
Am iofurmMftg Ae Lords Ordinary with a copy of ike doted Record.
By this act it is declared,—
I, — That the party enrolling a cause in the debate roll of any of the Jan. 16. 1827.
Lords Ordinary, for debate upon a closed record, shall, at the time of Copy of Record
enrolment, deliver to the clerk who enrols the cause a written or printed to clerk enrol-
copy of the closed record. ting the cause,
otherwise not
IL— That if be fail to do so, the clerk shall not enrol the cause. to enrol.
m.— That a party who baa already enrolled a cause, but which has If cause already
not been yet debated, shall deliver a written or printed copy of the closed ^o11^
record to the clerk of the Lord Ordinary within 14 days from the date given to clerk
hereof; and, * *e I* O.
IV.— Thai if he fail to do so, the cause shall be struck out of the de-
bate roll.
W. Pollock, Advocator.— Robertson—W. BeU. JI0, \\g9
J. TuKNBULLr Respondent. — Sol-Gen. Hope— U Amy.
Property— Burgh Royal— Title to P«r*w*.— -Held,— 1.— That a singular successor
of a feu of which the Magistrates of Edinburgh were superiors, could not be
affected by conditions contained in acts of Council, but which were not intro-
' duetd into the titles, nor referred to ;— and, — 2.— That the City Chamberlain
having been called as a party to a process before the Dean of Guild for authority
to build, was entitled to make appearance, and found on these acts of Council*
On the 14th of February 1781, the Magistrates of Edinburgh Jan. 16. 1827.
passed an act of Council, declaring * that no feu shall be granted l Dmswm.
* in the extended royalty for houses above three stories high, ex* ju>rd Meadow-
c elusive of the garret and sunk stories : Also, that, before grant- bank*
* ing charters, the feuars be obliged to lodge, with one of the City
1 clerks, plans and elevations of the buildings they intend to erect,
' to be submitted to the inspection of the Council ; and if they are
' approved of by them, these plans and elevations must be lodged
1 in the City V charter-house, in perpetuam rei memoriam, within
196 CASES DECIDED IN THE '
•
* eight days after the charter is granted, and said deposit to be
* minuted first Council day thereafter.' Then, after some regula-
tions as to the meuse lanes &c, the act of Council declared' that
reference should be made to it in all the future charters to be
granted to feuars in the extended royalty.
On the 15th of September 1784 another act of Council was
passed, in which, after narrating that the builders had disregarded
the former one, it was enacted, that ' the Town's overseer shall
' be directed, when he sees a foundation digging out, to require
( from the builder a sight of the elevation, with an extract of the
* act of Council approving thereof; and upon refusing or delaying
' so to do, to apply to the Dean of Guild to 6top the building till
* such time as the elevation, and extract of the act approving
' thereof, are produced ;' and it was further appointed that * a
* printed copy of this act be delivered along with each act of
c Council granting a feu in the extended royalty, that none pre-
' tend ignorance.*
Again, on the 29th of June 1785, another act of Council was
passed, declaring,
' 1. That when any application is given in to the Council for a
* feu, the «ame is to be remitted tor a committee; but the com-
' mittee is to make no report thereupon, nor is the feu to be granted,
* until such time as a plan and elevation of the intended building,
' signed by the person applying, be given in to the committee,
* and approved of by them.
« 2. That no feu shall be granted in the principal streets in the
* extended royalty for houses above three stories high, exclusive
* of the garret and sunk stories; and that the whole height of the
€ front walls from the floor of the sunk story shall not exceed
* forty-eight feet.'
It was then declared that transgressors should be liable in a
certain penalty, besides being compelled to observe the act ; and,
c Lastly, That no proposal for a feu be agreed to, unless it con-
' tain a reference to this act, and an obligation on the proposer
* to observe and fulfil the articles before enumerated ; and that
« every such proposal shall be written on a paper to be annexed
' to a printed copy hereof; and they appointed this act of
' Council to be printed and published, that none may pretend ig~
* norance.'
On the 10th of November of the same year, the Magistrates,
by missive, agreed to feu to William Veitch, builder, a piece of
ground on the north side of George street. Before any title waq
granted, he erected a house upon it, three stories high, which was.
purchased by Michael Riddell, Esq. ; and on the 22d of November
COURT OF SESSION. *9T
1786 the Magistrates, with the concurrents of Vettch, 'granted
a feu-charter to Mr. Biddell. By this deed they conveyed to
him the pieoe of ground for payment of a certain feu-duty, to be
held of the Magistrates ' as superiors in time coming ; without
' prejudice nevertheless to the said Michael Biddell or his fore*
' saids to grant securities upon the aforesaid property, or to ex*
* ercise any other act of ownership which may not be inconsistent
* with the manner of holding hereby prescribed/ No limitation
whatever was imposed as to the height to which houses might be
built on the ground, and no reference was made either to the
acts of Council, or to the plan of the town. On this charter sasine
was immediately taken and recorded.
After passing through several hands, Mr. Pollock acquired
right to the property by purchase; and being desirous to put an
additional or fourth flat upon the house, and to make shops of
the lower part of it, he presented a petition to the Dean of Guild,
( stating his intention to turn the dining-room and area flats into
* shops, and to take-down the back wall, and widen the tenement
( to the extent of 90 feet, so as to build upon part of his back
' area, and carry the wall the height of the tenement, and to take
< off the roof, and to build an additional flat to the tenement, and
* to open up the cellars in front, and to convert them into wine
' vaults,'— and praying for the authority of the Court to make
those alterations*. d
After visiting the premises, the Dean of Guild * ordered Mr.
< Pollock to call the City Chamberlain as a party to this process,1
which he accordingly did, and in consequence the respondent
Mr. Turnbull entered appearance. Mr. Turnbull then objected,
1. That the proposal to raise the tenement, by building
m additional or fourth flat, was contrary to the acts of Council ;
and,
*. That the statute 1098, c. 8, required that houses of the pro-
posed height should have walls of a greater thickness than those
of the house in question.
To this it was answered,
1. That as Mr. Pollock was a singular successor, he could only*
be bound by the conditions appearing in the titles ; and that as
the provisions of the acts of Council were neither inserted in them,
nor referred to, they could have no effect against him.
8. That he was willing to build in terms of the above statute ;
and,
3. That Mr. Turnbull had no title or interest to resist the prayer
ef the petition.
At this stage of the proceeding, Mr. Pollock lodged a minute,
196
CASES DECIDED IN THE
in which he prayed to be allowed to take down the hoope en*
tirely, and to rebuild it of the above height. The Dean of Guild
and his Council then pronounced this interlocutor; « Find that the
Lord Provost, Magistrates, and Council of Edinburgh, the su-
periors of the ground on which George street is built, did, by
an act of Council, of date the 14th of February 1781, enact that
no feus should be granted in the extended royalty for houses
above three stories high, exclusive of the garret and sunk storey';
and by another act of Council, of date 15th September 1784,
did enact that no feuar should begin to build till the elevation
of his intended building should be approved of by the Council;
and by a third act of Council, bearing date the 89th of June
1786, did enact that no feus should be granted in the principal
streets of the extended royalty for houses above three stories,
exclusive of the garret and sunk stories; Find that when the
pursuer's author obtained a charter from the superiors to the
ground on which the pursuer's house stands, the house was then-
built, and had been erected in terms of the foresaid acts of
Council, that is, not exceeding three stories in height, exclusive
of the garret and sunk stories ; and therefore that there wa*
no necessity to insert in the charter any restriction in respect to
the height of the house : Find that those acts of Council, never
having been recalled, are binding on the pursuer, in the same
manner as they were binding on the original feuars; and that
the chamberlain of the superiors having been called as a defend-
er, has a title to oppose the application now made for permis-
sion to erect on the said piece of ground a new tenement, con*
sisting of four stories, exclusive of the garret and sunk stories ^
and in respect the chamberlain opposes the application, there-
fore refuse the same, in so far as the petitioner asks permission
to have a fourth storey ; but, quoad ultra, grant the prayer of
the petition, and allow the petitioner to take down and rebuild
the tenement accordingly, conform to the plan No. 3. of pro-
cess, under the above exception, and also on condition that
no part of the cellars go beyond the crib-stone of the foot pave-
ment; and allow an interim warrant to this. effect to be ex-*
tracted.
« iVbte.— The cases of Campbell against Lindsay, 17th of Feb*.
ruary!80S, and Reid and Burnett against Neil, 24th of May 1808,.
decided by the Court of Session, warrant, as appears to the
Court, the above interlocutor.'
Of this judgment Mr. Pollock brought an advocation, in which
the Lord Ordinary, after closing the record, and advising Cases*
remitted. f to the Dean of Guild with instructions to grant w*r-
COURT OF SESSION. ' 10ft
c rant for completing the building in question agreeably to the
• plan in process, and as craved in the advocator's minute in the
c Inferior Court.9
The Lord Ordinary delivered bis opinion in this note :—
* 1. The Lord Ordinary is of opinion that the City Chamber-
lain has no right to appear in this process, to the effect of en-
forcing performance of the alleged acts of Council founded on.
* SL The acts of Council themselves are nothing more, either in
words or substance, than a declaration of those stipulations which
it was proper for the Magistrates, as superiors, to impose upon
the feu-rights of their vassals, and do of themselves afford. evi-
dence of the understanding of all parties, that unless the feu-
rights were qualified by the mention of those limitations, they
would not be effectual
* S. Not being imposed in the charter granted by the Magis-
trates to the authors of the advocator, the alleged restrictions
cannot be enforced against him, a singular successor in the pro-
perty. The Magistrates, as superiors of the property on which
the tenement in question is erected, are in no other situation
than any other superiors, and have no right to impose limita-
tions on subjects feued out by them in a manner different from
others*
* That the Dean of Guild may have a right to prevent a breach
of regulations of police respecting the buildings erected within
his jurisdiction, may be very true; but in that case the proper
officer to enforce observance of such regulations is the procura-
tor-fiscal of the Dean of Guild Court ; and, in the second place,
it must be shown, which it has not been, that a regulation against
adding a fourth storey to the tenements in the New Town actually
exists, of which the Lord Ordinary has seen no evidence, as
the acts of Council founded on cannot, in his opinion, be so in*
terpreted, applying, as they do, altogether to limitations to be
imposed in fen-charters ; but which has not been done in this
case, or, as far as appears, in any other.41
Mr. Turnbull having reclaimed, the Court adhered on the
merits, and found that as Mr. Turnbull had been called as a
party, he had a title to appear and object.
Loan Balgrat. — There is no objection to the shape of the process ;
became, although Mr. Pollock originally intended not to take down
ifae building entirely, yet it often happens that it is necessary to
make more extended alterations than what were intended ; and there-
fore, amendments to this effect are, and often must be made* With
regard to the objection to Mr. TurnbuITs title. I do not think that
m
*D0
CASES DECIDED IN THE
in thfc can h ia iraQ founded. He mi called by an order 01 die Court;
which was acquiesced io by Mr. Pollock ; and I therefore think that he
was entitled to appear, and to oppose the petition, as the mandatory
of the Town Council. In relation to the merits; it is true that- the
object of the acta of Council, was to prevent houses being built above
a certain height, and it was intended thai this prohibition thould be
inserted in the charters granted to feuars ; but this was not intro*
duced into the charter in, question ; and as Mr. Pollock is a singular
successor, he cannot be affected by anything that does not appear
in the titles.
Lord Craigie. — If the interlocutor is adhered to, this will be the fire*
decision establishing that feuars may build in this town as they please,
which would be in opposition to the cases of Campbell and RekK
These two cases establish that these acts of Council must be regarded
as essential conditions of all the charters granted by the Magistrates.
Perhaps the plan of the town might have been better than it is, and the
houses erected in some parts of it in better taste ; but, to attain that
object, we cannot break through established rules, more especially
in relation to the principal streets. If we do not enforce these con-
ditions, any one may build as he pleases, so that you may have a
bouse of four or five stories, and another of one or two beside it,
and thus the greatest irregularity will be introduced.
Lords President and Gillies concurred in the opinion of Load
Balgray; and the former observed, that if Mr. Turnbull bad not been
catted, he would have doubted extremely whether he had any tkle
to appear.
Jdvocaiw's Authcntie*r-G\h$on> May 4. 1614 (9. Dow, del) ; Gordon, Feb.* 1818,
(6. Dow,' 87) ; Walker, March 11. 1825, (ante, Vol. III. No. 437.)
Respondent's Autiwritict.— Campbell, Feb. 17. 1803, (No. L3L App. Burgh Royal) ;
Reid, May 84. 1808, (No. 21. App. Burgh Royal) ; Dirom, June 5. 181 f, (sec
note to Young and Company, Nov. IT* 1814, (R €.)
W. Pollock,— MacRitch™, Bayley, and HENDERSON; W. S—
Agents.
No. 120.
Jan. 16. 1827.
1st Division.
LordEldin.
H.
3. and M. Mabston, PurBuers.— £?. IU%
W. Underwood, Defender. — Render***.
A4fwii^oi^Tack^C<m&tUimi^ & party hating acquired right as principal
tacksman to a long lease, and his name having been entered in the recital-book;
of the proprietor, and having subset part of the subject, and thereafter obtained
a renunciation and reconveyance of the sublease, held preferable to a creditor
adjudging in virtue of a bond and assignation in security granted subsequently by
tise •attentat.
Andrew Mtjhdkll having obtained a tack, in 1730, of part o£
the estate of Lbckerby for 21 times fourscore years, hisht "
and successor conveyed it to the defender Underwood, who^
accordingly entered in the rental-book of the proprietor as
court of session. m
cipal lessee. Thereafter Underwood subset one half of the subj ect
to Alexander Linton, who conveyed it to one Bell, by whom pos-<
session was taken. Linton thereafter- acquired right to it by a
retrocession from Bell, and then rfcconveyed it in October 1818
to Underwood. In August 1890 Linton granted a bond and
assignation in favour of the pursuers Marstons, by which he as*
signed to them, inter alia, the above subject in security of £115 ;
and in November thereafter, having been incarcerated for debt*
he executed a disposition omnium bonorum in favour of trustees
for behoof of his creditors. A question having arisen between
these trustees and Underwood as to the right to the above part
. of the subject, Lord Pitmilly found, 'that Linton having been
1 only a subtacksman, the reconveyance of his right to the prin-
( cipal tacksman did not require to be intimated to the proprietor
' of Lockerby ; that the defenders, whose alleged title to the
( subjects in question consists of a disposition omnium bonorum
' by Alexander Linton, granted in November 1890, have no right
' to these subjects whatever, in respect Linton was divested of
' them by the conveyance in October 1818 in favour of the pur-
' suer ; and that the disposition omnium bonorum did not com*
' prehend, and was plainly not intended to comprehend these
' subjects C and this interlocutor was confirmed by the Court
(See ante, Vol. III. No. 241.)
The pursuers Marstons having thereafter raised a summons
of adjudication, founded on their bond, in which they included
the above subject, and Underwood having opposed it to this ex-
tent, the Lord Ordinary, ' in respect that the conveyance to part
4 of the property in question in favour of William Underwood
* is dated prior to the deed in favour of the pursuers, found that
* the subjects referred to in the conveyance in favour of the said
* William Underwood must be deleted from the summons of ad-
judication f and the Court adhered.
W. M. Little,— W. Maktih,— .Agetts.
3. Smith, Pursuer J. M. BeB. No, 121.
J. Hart and Others, Defenders.— Jameson.
CtuU ■ Proceti—6. Geo. IV. e. 120.— A judgment granting the benefit of eessio
pronounced in abtence of the creditor* where all the procedure had been regular,
held not subject to review.
A summons of cessio bonorum, raised by Smith against his Jan. 16. 1827.
creditors, after having been taken out to see, was put put in the 2d Dms w
regulation roll of the week preceding the Christmas recess ; and f,
having stood there for four days, was called on "Thursday the
«& CASES DECIDED IN THE
Sist December, when great avizandum was made. It was then
enrolled in the Inner-House roll of the next day; and on the usual
statement of the case at the bar, a judgment was pronounced
granting the benefit of cessio, without appearance having been
made on the part of any of the creditors. Against this judgment
certain of the creditors presented a reclaiming note, to the com*
petency of which it was objected, that under the late Judicature
Act the Court had no power to review their own judgments.
To this it was answered, That the provision to that effect in the
act of Parliament followed the various regulations relative to
causes in which appearance had been made, and consequently
had reference only to judgments pronounced causfi cognita* ; that
the case of a judgment in absence in the Inner-House seemed not
to have been foreseen or provided for; and that it was incompetent
to extend to such cases provisions obviously intended for a totally
different class, — and this the more especially, as bankrupts were
allowed to reclaim against judgments refusing them the benefit
of cessio.
. The Court unanimously refused the reclaiming note as in-
competent.
Lord Justice-Clerk. — I confess that whatever may be the hard-
ship on the creditors, it appears to me that the bankrupt is protected
by the act of Parliament, The absence of the creditors arose from
their own neglect. There was no undue precipitancy; the case stood
for four days in the regulation roll, and the not making appearance
when the cessio was pleaded, was entirely their own malt. If we
are to entertain this note, it will just come to this, that where every
thing has been regularly done, we may be called on to open up the
judgment by any creditor who does not choose to appear. ' The
act of Parliament expressly mentions ' all causes/ and I cannot ap-
ply a different rule to this from what we must do to other
As to the bankrupt reclaiming from a judgment refusing the
that arises from the refusal always bearing to be ' in hoc statu ;* so
that it is still a depending process-
Lord .Glenlee. — It may possibly be, that a case of this kind was not
in riew of the persons who framed this statute, but* in construing an
act of the Legislature, we must take the true meaning of the words,
which extend to all cases.
Lord Pitmijlly concurred.
Lord Alloway. — I likewise concur in this particular case ; bat I
reserve my opinion as to a case where there is any real defect in the
Judges appeased to agree.
-Agents*
COURT OF SESSION. *#
D. Clkghoen, W. S. (Thomas Kyle's Trustee.)— Murray— No. 122.
Walker.
B. Gobjwn and Otters, (David Kyle's Trustees.)— Codfcforn
— J. Jf'iV«&
That.— A creditor of * trust-estate, under a voluntary trust, having succeeded In
a litigation with the creditors of the truster in establishing his claim against the
trust-estate ; held that, in accounting with him, the trustee was not entitled to
deduct the expenses of the litigation.
4
Thoxas Ktue was proprietor of the estate of Fens, under Jan. 16. 1827.
burden of a liferent enjoyed by his father David Kyle in right gD Division,
of courtesy. Thomas having fallen into embarrassments, exe- Lords Pitmiiiy
cuted a trust-deed for behoof of his creditors in favour of trustees. and ^acken"
To enable them to sell the property, David Kyle entered into M'K.
&4ransaction with them, by which he agreed to renounce his life*
rent in consideration of an annuity of -£120 per annum, and to
allow a few acres belonging in property to himself to be sold
along with the estate of Fens« The estate was accordingly sold,
and the price effeuing to David Kyle's acres amounted to jP57S.
This sum not having been paid to David Kyle, and the annuity
having been allowed to fall into arrear, an action was raised by
Gordon tkc., (to whom David Kyle had conveyed all his property
in trust,) against the trustees of Thomas, for payment of the
price of the acres belonging to David, and of the arrears of an-
nuity. In this action they were opposed by Thomas Kyle's trus-
tees, under authority of resolutions of Jus creditors; but they ulti-
mately obtained decree, with expenses. Thereafter Mr. Cleg-
horn, having been appointed sole trustee on the estate of Thomas,
raised a multiplepoinding as to the disposal of the trust-funds in
his hands, in which David's trustees lodged a claim for the amount
so decerned for. In the condescendence of funds lodged by Mr.
Cleghorn, he deducted both the expenses incurred by Thomas
Kyle's estate in the litigation, and those awarded and paid
to David's trustees. To this it was1 objected, that as they were
not creditors of Thomas Kyle under the trust, but creditors of
the trust-estate itself, or, in other words, of the creditors on that
estate, by virtue of the transaction, Mr. Cleghorn was not entitled,
in a question with them, to deduct the expenses incurred on either
side from the fund in medio. Lord Pitmilly found, ' That the
* pursuer, the trustee for the creditors of Thomas Kyle, in stating
< the amount of trust-funds in account with the respondents, the
* trustees of David Kyle, is not entitled to claim deduction of
* the law expenses of resisting .the action at the respondents' in-
904 CASES DECIDED IN THE
( stance, nor of the expenses to which the respondents were found
« eqtitied in the said action f and to this interlocutor Lord Mac-
kenzie, and afterwards the Court, unanimously adhered.
D. CLfeoHoiw, W. 8U- W. Wallace, W. S— Agent*,
No. 123* Patekbo^s Trustees, Pursuers. — Skene— MarshaR.
G. Brown, Defender*— D. qfF. Moncre\ff~More*
Jan. 16. 1827. Debtor and Creditor. — The pursuers, as trustees of the late
fen nivi«in» Robert Paterson, Raised an action of count and reckoning against
Ld. Cringlette. Brown for certain intromissions with Paterson's estate. In this
' M'K. action Brown claimed to be credited, as having twice paid a debt
of £0100, in evidence of which, he appealed to his being in pos-
session of two retired bills to that amount. On the other hand,
the trustees insisted that he should produce vouchers in support
of a certain account, the correctness of which, when first lodged,
they had by a regular minute admitted without vouchers. The
Lord.Ordinary and the Court being satisfied, on the report of an
accountant, that one of the two bills in Brown's possession had
been merely a renewal of the other, which last, instead of being
cancelled, had been allowed to remain in his possession, and that
be had, in point of fact, only paid the debt once; found that he
was not entitled to credit for this sum, and as to the other matter,
found that he was entitled to credit without the production of
'vouchers.
D. and A. ThomsoJt, W. S.— A. Gifford, — Agents.
No. 124. D. Stewart, Pursuer. — Forsyth — J. M. Bell.
Colonel Mitchell and Others, Defenders. — Robertson.
Jan. 17. 1827. Cessio.—Ix this case the Court repeatedly refused the pursuer
~r — the benefit of the cessio, as he appeared to have been guilty of
H# * fraud; but at last, after having been upwards of 20 months in
prison, they decerned in his favour.
A. M'Iktyhe,— D. Stewart, — Agents.
COURT OP 8EflSIQN. £0*
D. MTaelaot, Advocator —Jmrnamm—J. Henderson Jvn.-~ No. 125.
Shaw.
J. Stow*, Respondent.— /fyrj^A—2to#»*fl.
Triennial and Quinquennial Pre9Cfipt$on.—He\d that neither the triennial nor the
Quinquennial pteacriptieai it applicable to a oonfligniaent of good* made in |e»
cvitf of an advance of money, and with power to sell in the event of the ;
not being repaid within a specific period.
Ok the 30th of September 1819, ATFarlane, in consideration of Jan. 17. 1857.
an advance of jf 60, delivered to Brown a quantity of oil, amount- ]n,~i)^7Bj01f.
iog in value to £9$ : S : 4, and at the same time sent to him an in- Lord Eldin.
voice with the following letter ; — ' I have this day received i?60 8.
( sterling to account of the above oil consigned to you as security, •
' which oil I allow you to dispose of to the best advantage, unless
' the above j£60 is paid within a month of this date/ In virtue
of this authority Brown sold the oil, and in November 1824*
if Farlane iwised an action against bhn before the Sheriff of
Edinburgh, concluding for payment of a balance of JP18.
In defence Brown pleaded* that aa the alleged debt was con-
tracted in September 1819, and the action had not been raised till
November 1824, the claim was cut off by the triennial, or at least *
by the quinquennial prescription ; and the Sheriff accordingly
sustained thejplea of prescription, and;found that the resting owing
could only be instructed by Brown's writ or oath,
M'Farlane then brought aj\ advocation, and maintained thes?
pleas in law :—
1. That as this was not an ordinary contract between buyer
and seller, but was a consignment of goods, ox more properly *
pledge accompanied by a mandate authorizing Brown to sell in
a certain event ; and as the goods still remained the property of
MTarVane, subject to the lien which Brown held as his factor or
agent, and subject to the exercise of the mandate which was give?
to him to enable him to sell in the event of the pledge not being
redeemed; neither the triennial nor the quinquennial prescription
could apply ; and,
2. That at all events it was inapplicable, as the transaction
had taken place under a written contract.
To this it was answered,
1. That as the transaction related to moveables, it bad fallen
under the quinquennial prescription ; and,
SL That as this could only be elided by Brown's writ or oath,
and the letter was noj written by him, the interlocutor of the
Sheriff was correct.
*08
CASES DECIDED IN. THE
The Lord Ordinary * advocated the cause, altered the inter-
4 kxmtbr of the Sheriff, and repelled the plea of prescription, and
c found expenses due*'
The Court, after hearing Brown's counsel, and without calling
upon M'Farlane to answer, adhered.
- Lord Balgray.— This was a mere consignment of goods in security
of a debt, and not a sale ; and therefore it is impossible to hold that
either of the prescriptions can apply.
The other* Judges* concurred.
C. Fisher, — D. Gray, — Agents.
lor Division.
Lord Eldin.
H.
No. 126» . Dr. Milligan, Advocator. — Skene — Henderson.
P. Milligan and Others, Respondents. — G. Bell.
Juritdtettoft^Commttsdry.'^^ircximatanceB under which it was held, that a peti-
tion to a Commissary to cause certain effects, alleged to have belonged to a de.
• funct, to be delivered to her representatives, or to inventory and preserve them,
was incompetent.
•
Jan. 17. 1827. ' In September 1890, Peter Milligan and others, as executors qua
nearest in kin of the late Mrs. Helen Irving, presented a petition
to the Commissary of Dumfries, stating, ( That the said Helen
Irving died possessed of various articles of household furniture,
beds, bedding, bed and table linen, wearing apparel, books, and
other moveable effects; and the petitioners are informed, and have
reason to believe, that a considerable part of the said household
furniture, beds, bedding, bed and table linen, wearing apparel,
books, and other moveable effects, are how in the possession of
Elizabeth Johnston Milligan, residing at Grove in the parish
of Kirkbean, William Murray, schoolmaster at Kirkbean, and
Peter Milligan in Tailowhairn, also in the parish of Kirkbean :
That the petitioners being the* nearest in kin to the said Helen
Irving deceased, and executors admitted and confirmed to her
as before mentioned, have good and undoubted right to take
and use the whole of the household furniture, and other move-
able goods and effects, that belonged to her at the time of her
death ; and they are desirous to obtain possession of the same,
that they may make up and render an inventory and appraise-
ment in terms of law, and use and dispose of the same at plea-
sure; but the said Elizabeth Johnston Milligan* William
Murray, and Peter Milligan in Tailowhairn, decline to part
with the said goods and effects, without the authority and war-
rant of your Lordship to that effect9 They therefore prayed
the Commissary ' to decern and ordain the said Elisabeth John-
• COUBT OF SESSION* SOT
* stoti Miffigah, William Murriy, mid Peter Milligan, to deliver
* to the petitioners the articles of household furniture, beds, bed-
* ding,' bed and table linen, wearing apparel, books, and other
•* moveable effects that belonged to the said Helen Irving de-
4 ceased at the time of her death, that the petitioners may have
* the same inventoried and appraised in terms of law, and may
* Use and dispose of the same at pleasure/
* In defence, these parties stated that they were in possession of
these effects, but that they had been placed in their custody by
her son, the late James Irving, and that they could not give them
-up, except with the consent of his representatives.
The Commissary then ordained the executors of James Irving
-to be called, in consequence of which, Dr. Milligan and John
•Kerr (since deceased) appeared and maintained,
1. That the right to the effects had been vested in James sub-
sequent to the death of his mother, and that they, as his executors,
were entitled to thejn ; and*
2. That such being the case, the petition was incompetent.
The Commissary, ' in respect there appears to be a competition
* of rights between the pursuers and defenders, upon which this
' Court is not competent to decide, granted warrant to, and au-
c thorised the clerk of Court to obtain and report proper inven-
* tones of the effects in dispute, and thereafter to deposit them in
* the hands of some proper person*
Thereafter an action of declarator and count and reckoning
was brought in the Court of Session by the executors of Mrs.
Irving against Dr. Milligan and Kerr, as executors of James
Irving, with a view to have the question of right settled. And
the above judgment having been reclaimed against, the Commis-
sary, * in respect there is a process presently depending in the
' Court of Session, upon the decision of which the title of the
' said defenders depends, sisted further procedure as to the rights
* of parties in this incidental application, until the issue of
* said process ; but found that, in the event of James Irving's
* settlement being sustained, said defenders will be entitled to
* compete with the pursuers, before this Court, for the effects in
r question ; and to .that "extent altered the interlocutor reclaimed
* against; but adhered thereto in so far as it grants warrant to
1 inventory and preserve said effects in the mean time/
Of these judgments Dr. Milligan brought an advocation, and
contended, That as the Commissary had found that he was not
competent to decide the question of right, he ought to have dis-
missed the process simpliciter, instead of granting warrant to in-
ventory, and thereby to invert the possession by removing them
vol. v. o
208 CASES DECIDED IN THE
from the custody of those who held them for behoof of Jamefc
Irvings representatives.
In answer to this it was maintained, That as it was admitted
that the effects had originally belonged to Mrs. Irving, and as
there was a dispute as to which of the parties had right to them,
the Commissary had acted correctly in listing process as to the
question of possession, and in granting warrant to inventory and
preserve them till the issue of the declarator ; and that it was the
peculiar province of the Commissary to entertain all questions
as to the effects of defuncts, and more especially to cause them
to be inventoried and preserved till the matter of right was d&»
cided.
The Lord Ordinary < advocated the cause, altered the inter*.
4 locutors of the Commissary complained of, found that the appli-
1 cation to him at the instance of the respondents waa incompetent,
« therefore dismissed the same, and found the advocator entitled
* to expenses both in this and in the Inferior Court ;' and to thia
interlocutor the Court adhered*
The Court appeared to be of opinion, that the Commissary could not
competently grant warrant to invert the possession; and that, instead
of applying to him, the executors of Mrs, Irving should have moved
the Lord Ordinary, in the process of declarator, for warrant to in-
ventory and preserve the effects.
R. Welsh, — T. Johwstonet— Agents.
No. 127* W. Pattison, (Lawrie and Son's Trustee!) Pursuer. — Skene
—Hamilton.
P. Campbell, Defender. — Di qfF. MoncreiJF—Maidment.
Bill of Exchange — Res JudittUa— Process.-— Re\dr-A.~-Thkt the presumption of
onerosity in favour of the holder of a bill blank indorsed, and delivered snbse*
quentiy to its dishonour, sad after diligence had been raised, can only be redargue^
by writ or oath ;— and,— 2.— That the holder having been assoilzied from an ac-
tion concluding for restitution of the bill, on the ground of having obtained it
without value, and in collusion with bankrupts to defraud their creditors, Was
entitled to plead res judicata against an action of redaction on the sane grounds,
and containing the same conclusions ^-«nd,— 3.— That it is irregular to close a>
record on mutual memorials.
Jan. 17. 1837. In 1820, Pattison, as trustee on the sequestrated estate of
1st Division. ^a^e and Company, upholsterers, presented a petition to the
Lord Meadow. Sheriff of Edinburgh, stating, that it appeared from the books trf
bank. the bankrupts that in 1815 they had received a promissory note
D' for «£131 : 12 : 6 from Henry David Erskine, Esq. younger of Am~
mohdell, payable three months after date;— 'that they had uidoratsdt
<X>U9T OP SUSP ION. 309
it away, add tb4t> after pgesipg through several hands, it had been
dishonoured and retired by them, after diligence had been raised
upon it; but that neither the bill nor the diligence could be
found, and no further traces of them appeared in their books ;-—
that, however, he had ascertained that, within a few days prior to
their sequestration, they bad applied to the late James JVf Culloch
of the Royal Hotel to enter intp some transaction relative to the
bill ; — 4h*t be had introduced them to Patrick Campbell of the
Crown Hotel, to whom they ba.4 delivered the bill and diligence;
but that he had given no value* He therefore prayed that Camp-
bell should be ordained to deliver up the bijl and diligence to him,
as trustee on the estate of the bankrupt!* In defence, Campbell
stated that he had paid full value for the bill ; and as it was
blank indorsed by the bankrupts, (the ^xwttnor indorsations hav-
ing been deleted,) and he being the Judder of it, he must be pre*
turned to be an onerous indorsee ; and therefore it was incompe-
tent to compel him to deliver up the bill, or to set aside his right,
except in the shape of a redaction. The Sheriff dismissed the
action, * in respect that the bill in question has a blank indorsa-
* tion by the bankrupts, and is admitted to have been delivered
' to the defender so as to transfer the right to the debt, and conr
' sequently to the defender ; and that the claim now made by the
c petitioner, the trustee, truly resolves into a challenge of the
* transaction in question upon the statute 1696, c. 5, which is
* only competent by a reduction in the Court of Session ;' and to
this interlocutor the Court, in an advocation, adhered on the 16th
of January 1831.
Pattiaon then raised an aetion of reduction, in which, however*
he did not libel on the act 1606, cJ; but alleged that • the bill
' bad been fraudulently obtained by the said defender, in cpmbi-
' nation and collusion with James M'Culloch of the Royal Hotel,
' Edinburgh, now deceased, on the eve of the bankruptcy of the
' aaid Andrew Lawrie and Son, or at least within 60 days of the
' date of the sequestration of their estate, and that without any
' value whatever having been given, either by the said James
' M.'CuIJoch or the defender, to. the said Andrew Lawrie and Son,
'for the said promissory note and diligence; and at the time
c the aaid defender so obtained possession of the promissory note
c and ^iggncri neither he. nor the said James M'Culloch were
4 creditors of the said Andrew Lawrie and Son ; so that there
4 could have been no real intention? on the part of the bankrupts
' of transferring the said promissory note or diligence to the de-
' fender, and the same therefore are fraudulently kept and de-
' taiaad by, the defender from the pursuer, as trustee,' ka. The
o2
810 CA8E6 DECIDED IN THE
conclusion was, that f the pretended right of the defender to the
c said promissory note, founded on the delivery thereof to him or
* otherways, with all that has followed thereupon, ought to be re-
* duced ; and that the defender should be ordained to deliver the
4 promissory note and diligence to the pursuer.*
The Lord Ordinary having allowed a diligence against havers,
which was executed, Pattison, in support of the action, stated
that although Campbell kept regular books, yet there was no
entry relative to the transaction in them ; and that it appeared
from a claim which he had made on the estate of M'Culloch, that
he merely held the bill in security of an alleged debt due to him
by that person, whereby it was evident that he was not an onerous
holder ; and he contended that although the transaction was not
reducible on the act 1696J (seeing that Campbell was not a prior
creditor,) yet as no value had been given for it, the bankrupts had
not intended to convey the bill to him, and therefore he ought to
be ordained to give it up.
In defence, Campbell maintained,
1. That as the conclusion of the action was substantially the
same as the prayer of the petition for delivery and restitution,
he was entitled to plead res judicata.
S. That the form of the action was irregular, as it did not con-
clude for reduction of the indorsation in his favour, but merely of
his pretended right, founded on the delivery of the trill; and,
8. That as he was the holder of the bill, with a blank indorsa-
tion, he must be presumed to have acquired it for an onerous
cause, which- could only be redargued by his writ or oath; and
that the circumstances founded on were insufficient to establish
that he has obtained it fraudulently and without value.
The Lord Ordinary, after appointing the case to be stated in
mutual memorials, and closing the record upon these pleadings,
assoilzied the defender, but found no expenses due.
Both parties having reclaimed, the Court recalled, the interlo-
cutor closing the record, adhered on the merits, and found ex-
penses due.
Lord President. — We cannot judge of this case as upon a closed
record ; and therefore we must recall the order to that effect, and re-
gard it as a case brought before us in terms of the act of sederunt
relative to actions in winch judgment has been pronounced, either
upon representation and answers, or memorials, previous' to the Ju-
dicature Act having come into operation*
On the merits, this appears to me a very novel species of reduo
tion. It is not a reduction of the bill iteelfcor of the indonetknr,
or of an assignation to it, but merely of a pretended right ; ami**
COURT OF SB86IO& > Sit
eoMJufa k far deKray of the bi& But we found in the previous
action that the pursuer was not entitled to restitution of tbc bill, and
therefore it does not appear to me how he can competently insist in
the present action. Indeed the former one was the better action of
the two for trying the question of right to the possession of the bill.
LiOSj> GiLi.ias* I am of the same opinion* In the former action the
allegation of the trustee was, that he was in truth the proprietor of
the bill, and entitled to restitution of it ; and that is just what he
maintains here. I also think that no circumstances have been stated
sufficient to deprive Campbell of the presumption of law in his fa-
vour. The trustee may refer to his oath; or, if he thinks he has any
grounds for it, he may bring a reduction on the act 1696.
Lords Balgkay and Cbaigib concurred*
Defender'* Authorities— Chitty, 175 ; Baillie, 48.
J. Pattison Jim. W. 8.—J. MXjRsgoi, — Agents.
D. Caheick, Suspender. — Ruthtrfurd. No. 123
W. Mathxe and Others, Chargers. — Cockburn — Whigham.
Pneese— Previous B*petue*—Stat. 6. Geo. IF. c. 120.— Held,— 1— That it is in
competent, in reviewing the decree of an Inferior Court, to allow a proof by com-
mission in the Court of Session, and that the case mutt be remitted either to the
Jury Court, or to the Inferior Court;— and,— 8.— That a suspender of such a de-
cree* who thad led a proof in the Inferior Court, and against whom the term
had been ctreumduced, is liable in payment of the previous expenses, before be-
ing allowed an additional proof of his averments.
Hathu and others raised an action before the Magistrates Jan. 17. 1837.
of Glasgow against Carrick, in which, a proof having been al- 1aT d, visum,
lowed, the suspender adduced evidence, and the chargers hav- Lord Eldin.
ing led none, he moved for and obtained circumduction against H*
both parties; and, on advising the case, the Magistrates pro*
nounced decree against him. A charge was thereupon given, of
which he brought a suspension, and the record was made up
and closed on reasons of suspension and answers, as on a con*
eluded cause* The case having been then debated, the sus-
pender moved to be allowed a proof of his averments ; and the
Lord Ordinary, * in respect that the parties are at issue upon the
' material facts of the case, allowed the suspender a proof of his
* averments contained in the closed record, and to the charger
' a conjunct probation ;' and granted commission for that purpose.
Mather and others then reclaimed, and contended,
1* That according to the 40th section of the Judicature Act, it was
incompetent to allow a proof by commission in such a case as the
present, and that this could only be done, either by remitting the
818 CASES DECIDED Df THE
case to the Jury Court, or to the Inferior Court; that as the record
had been made Up bh teasobti <rf suspension and answers* and
as on a concluded catrse, the suspender was not entitled to have
the case remitted to the Jury Court? and, -
2. That as a proof had been allowed in the Inferior Court of
the averments made by the suspender, which he had not brought,
and as the term had been circumduced against him, he was not
entitled to such a proof; or at least that it could only be granted
to him on condition of payment of the previous expenses.
To this it was answered,
1. That the enactment alluded to referred to advocations, and
not to suspensions; that it was immaterial to the suspender whether
the proof was taken in this Court or in the Jury Court; and that
issues might be framed from the record ; and,
8. That the claim for previous expenses was not well founded
in point of justice ; and that it was incompetent, in a suspension, to
remit to the Inferior Court to award expenses against the sus-
pender.
The Court altered the interlocutor, and, on condition of pay-
ment of the whole previous expenses, remitted to the Magistrates
with instructions to allow the suspender a proof.
. Lord President.— We cannot competently take the proof in this
Court, but must either send the case to the Jury Court, or to die
Inferior Court* As the suspender wishes to have a proof, we can
make a remit to that effect to the Inferior Court ; but we may do
so, on condition of his paying the previous expenses.
Lords Balgray and Gjlues concurred.
W. Renny, W. S^—D. 8. Threshie, W. S — Agents.
4
No. 129. J- Berby, Advocator. — D. qfF. M oner eiff— Murray —
A. JkTNeiU.
J. L. Allen. — Keay — Rutherfurd.
landlord and Tenant.— -Held that a waygoing tenant, bound by bis lease suflU
ciently to manure his lands, and consume on tbem all the fodder except that of
the last crop, was entitled to the value of dung left on the farm, though made
prior to the preceding bear seed-time, when, in relation to the nature and situa-
tion of the farm, it was inconsistent with good husbandry, and had been his
practice, during the preceding years of the lease, to preserve the dung to be con-
. sumed on wheat crops in autumn*
Jan. 17. 1827. Berry was tenant of the farms of Daleally and Loan be-
2d DivT^ox. k"^ t0 A11**** md "tMted in the Cause of Gowrie> (a wheat
Ld. Cringietie. district,) under a lease for the period of 19 years from Whit-
M'K. sunday 1803 as to the houses and grass, and the separation of
COUHT OF SEB&IOH. %\3
the crop as to the amble taut The rent stipulated was partly in
money and partly in hurley, the produce of the lands. In regard
to the farm of Loan, the dung and straw of which were steelbow;
it was provided < that the tenant should not be at liberty to lay
4 any of the dung and straw remaining on the Loan farm, after
1 finishing the wheat seed the last crop under this lease, upon any of
c the lands for the last crop; but the whole of such dung and straw
c shall be reserved for, and delivered over to the proprietor or in-
' coming tenant at the time of their entry, without any considera-
( tion or reoompence for the same.' But as to the farm of Daleally,
the straw and dung of which were not steelbow, the tenant was
merely taken bound ' to consume upon the ground of the said
* subjects the whole fodder that shall be raised from hay ; but
* the whole fodder of the last crop on the farm of Daleally, not-
* withstanding the above restriction, he shall have liberty to dis-
* pose of as he shall think proper, reserving the landlord's right
* of hypothec ;' — the tenant further bound himself * to suffi-
* ciently cultivate, dung, labour, and manure the lands hereby
* set T and he was also obliged to give the incoming tenant entry
to 15 acres of fallow at the Whitsunday before his removal.
Berry had, at his entry to Daleally, purchased the straw and
dung from the waygoing tenant ; and during the course of
the lease had been in the practice to sow his wheat in autumn,
with whatever dung he had not consumed on the crops of pota-
toes and turnips in the spring ; and during the last year he had
put the usual quantity of dung on the lands, leaving, according
to the due course of rotation, 50 acres for sowing wheat in autumn,
being about one fourth of the whole land possessed by him. At
Whitsunday 1821, the term of removal from the houses fee, there
was a quantity of dung and straw on the farm of Daleally, which
it was agreed should be handed over to the incoming tenant — he
paying for whatever Berry might be found entitled to dispose of.
In reference to this, the landlord presented an application to the
Sheriff of Perthshire, praying him to appoint valuators to value
the straw and dnng so left on the possession, and on their report
to find that he was * not liable in the price or value of any of the
c. dung so left, or, at any rate, of that part thereof which ought
4 to have been applied to the lands with the present crop ;' nor
* for the straw remaining on the possession, which, in terms of the
* lease, ought to have been consumed on the possession.* Three
valuators were accordingly appointed, who each gave in a sepa-
rate valuation of the straw and dung, and reported that none of
the dung had been made after bear seed-time, and that the straw
(which was, of course, part 6f the preceding crop) was not more
than sufficient for the use of the farm tQl the new crop should be
81* CA8ES DBCIDED IN THE
reaped. The Sheriff, on considering these reports, to the correct-
ness of which the valuators were required to depone, * found, as
to the dung left on the farm, that by the express stipulation of
his lease, the defender was bound to consume upon the ground
of the said subjects the whole of the fodder that shall be raised
thereupon, but hay, except the fodder of the last crop ; — finds
it reported by the inspectors, that no dung has been made since
the period of the last bear seed-time ; and therefore that the
whole dung on the premises is derived from the fodder which
he was bound to have consumed on the ground, and which by
law he was bound to have laid upon the land for its due cultiva-
tion, and therefore that he is not entitled to any remuneration
for it from the landlord ; — finds, as to the straw, that there is
not more on the possession than was necessary for the purposes
of the farm till the fodder of the present crop can be brought
into use, and decerns.'1
Berry thereupon brought an advocation, in which it was con*
tended for the landlord,
1. That the various judgments of the Court, from the case
of Finnie v. Trotter in 1767, down to that of Forrester v.
Wright in 1808, went to establish a general rule applicable
to all circumstances, which was to supersede all argument as
to the different modes of culture; and this rule was, that all
dung made before bear seed-time should be consumed on, the
lands that season, and that the tenant was not entitled to any
dung except what was made after that period ; and,
% That as the tenant was only entitled by his lease to the
straw of the waygoing crop, but to no part of the fodder of any-
preceding crop, he could not, consistently with the terms of the
lease, (which must be strictly considered as the sole rule of deci-
sion, agreeably to the judgment of the House of Lords in the
case of the Slains tenants,) dispose of any straw, except that of
the last Crop, nor consequently of any dung made from the straw
which he was not entitled to take away ; and also that his lease
bound him to pay part of his rent in barley, the growth of the
lands, which necessarily must be sown with dung in spring, while
he had no barley whatever on his farm the last year.
To this it was answered, That the only rule which had been
fixed by the decisions of the Court in reference to this subject
was, that a tenant is bound to manage his farm tanquam bonus
vir ; and that if he do so, all the dung remaining on his farm at
the date of removal he is entitled to dispose of; — that the result
of this rule, therefore, as to the period after which all straw pro-
duced is to belong to the tenant, must vary with the character
And situation of the farm, and mode of cultivation practised in
COURT OF SESSION* Slff
the district ;— that according to the mode of cultivation followed
in the district where this, farm was, he waanot bound by the rides
o£ good husbandry, or the terms of his lease, to have consumed
on his farm the straw and dung in question, which could not
with any advantage have been laid on the farm in spring, but
was necessarily retained for the wheat to be sown in autumn, which
universally formed the principal crop in that part of the coun-
try, and out of which, indeed, the rent must be paid ;— that h was
not alleged that he had improperly withheld dung or fodder,
in order to have the benefit of it the last year of his lease ; — and
further, that the landlord himself had sanctioned and approved
of this mode of management, by stipulating as to the farm of
Loan, (where the straw and dung were steelbow,) that the tenant
should not use for the last crop any dung made after the previous
wheat seed-time, which was to be reserved for the use of the in-
coming tenant; — and, in regard to his having no barley on his
farm, that the stipulation in the lease did not mean that the grain
paid in rent was to be the actual produce of the farm, but merely
of equal quality with barley grown on the farm, and accordingly
that the grain acoepted as rent during the previous years of the
lease had not been the growth of the farm, but grain of the best
quality in the district
The Lord Ordinary, after ordering condescendences, and al-
lowing a proof as to the fact of Berry having purchased the
straw and dung of the outgoing tenant at his entry, for the
reasons stated at length in his Lordship's notes, and parti-
cularly on the ground, as expressed in the interlocutor, that
ft was not denied that the advocator had f applied the manure
' made on his farm to the land thereof in the autumn and win-
' ter of the year 18S0, and in the spring of 1821, in the same
* manner as he had done in the former years thereof ;' and * that
* if he shall not be paid for the dung left on his farm, his suc-
' cessor, the incoming tenant, will get a crop of wheat at his ex-
4 pense,' advocated the cause, altered the SherifTs interlocutor,
and found Berry entitled to the value of the dung and straw, ac-
cording to a medium of the three reporters' valuations*
The Court having adhered to this interlocutor, Allen reclaim*
ed, and in his petition made some general allegations as to Berry
having miscropped his farm, but, on a question to that effect by
the Court, he did not undertake to establish them, and their
Lordships accordingly again adhered, reserving to the Lord Ordi-
nary to hear parties as to whether the valuation was to be taken ac-
cording to the average of three valuators, or on what principle,
and also as to a claim for interest made by the tenant.
$16 CASES DECIDED IN THE
The Lord Ordinary observed in bis notes,—
In this case the questions ate properly, 1. To what quantity of dung
the landlord is entitled without paying for it? And, 2. Is he en-
titled to the straw of crop 1820, remaining at Whitsunday, without
paying for it P On the latter point the Sheriff's interlocutor in si-
lent. The obligation in the lease is, that the tenant shall * consume
' upon the ground of the said subjects tbe whole fodder that shall be
* raised thereupon, except hay ; but the whole fodder of the last
' crop on the farm of Daleally, notwithstanding the above stipulation,
' he shall have liberty to dispose of as he shall think proper.' No*
thing is here said about dung ; but there follows an obligation ' suf-
' ficiently to cultivate, dung, labour, and manure the lands hereby
' set,' which of course, as well as the common law, obliged him to
dung sufficiently the land for the last crop, as well as any other dur-
ing the lease ; and if he did not do so, he is certainly not entitled to
the payment of any dung which ought to have been put on the
ground in conformity to the practice of die seven years, preceding
the expiry of his lease ; while, on the contrary, he is entitled to pay-
ment for all he has left, over and above what ought to have been need*
Law is a science which must vary with the manners and customs
of society, and improvements in every department; and coast
quendy it appears to the Lord Ordinary impossible that any judge-
ment of this Court, applicable to the mode of agriculture 40 years
ago, can regulate it now when the system is greatly improved ; nor
that a judgment applicable to one sort of land can govern the man-
agement of a soil totally different. For instance, in many parts of
Scotland wheat cannot be raised with advantage ; and consequently,
as all the crops are sown in the spring, the manure made in the
winter ought to be applied to the land in the spring season, in so far
as it is not necessary for the land under turnips, which are generally
sown in the end of May and beginning of June : On the contrary,
where wheat is the principal crop, it is always sown with dung ; and
if it be sown in autumn and beginning of winter, h is manifest that
this dung must have been chiefly raised in the preceding winter and
spring ; almost no dung is made in* summer. To say, then, that the
advocator, if it was his practice to bestow his dung on his wheat,
was bound to lay the winter and spring made dung on his spring
crops, is to say that the incoming tenant could have no wheat sown
the year of his entry to possession, unless on the ground which had
been under potatoes and turnips that year.
The question at issue is not, whether the advocator's mode of
management was the best, or whether it was exceptionable. The
presumption that it was good is in his favour, as there neither was
nor is in the petition to tbe Sheriff any complaint of misbehaviour ;
the dispute is respecting the quantity of dung to he paid for by
the incoming tenant. The advocator has sufficiently and distinctly
explained in his condescendence his rotation of crops, and his mode
COUBT 07 SESSION. 811
of manuring. He a»jp^ tta t to to ttt WiwteK wl»th«r ••wn in win-
%m, perhaps an spritigt bill whichever h was, lie used on it all his
dung, except what he applied to turnips fend potatoes in spring.
This may be led management; but the Lord Ordinary most repeat
that this is not the question.* The advocator father condescends,
that he used the same quantity of dung to the last crop that he did
to the fantter ones ; and, aa this is not denied, the Lord Ordinary
holds it to be true* Indeed the answers are anything bat what
they ought to be, being a pleading from one end to the other.
Holding it, then, to he true that as much dung was used by the ad-
vocator m the last year of hk lease is he used in former years, and
that he did not vary his practice* the Lord Ordinary denies the
conclusion drawn by the Sheriff, ria. that the advocator was bound
by law to have laid the whole duog on the- farm in spring on the
land. Ibe Lord Ordinary knows enough of Arming to affirm, with-
out heaurd of contradiction, that it is desirable to have a farm put
under a course of good management, and so as that the incoming
tenant, where a change of tenants is necessary, can continue the
same system observed by his predecessor. In this case the Lord
Ordinary presumes the system of the advocator to have been good,
since there is no complaint of it* Clear it is, that it is a form on
which large quantities of wheat grew annually ; and if all the dung
made in the winter and spring had been laid on the land, there
could have been no autumn or winter-sown wheat that year ; so that
the interlocutor of the Sheriff would disturb the regular course of
management of the farm.
The decision quoted by the respondent has no application to this
cause. In that case, 19th February 1818, Forrester v. Wright, the
tenant was explicitly bound ' to eat and consume the whole straw
* growing on the said lands with his bestial, and lay the whole dung
' the last year of his tack at bear seed-time.* The judgment there
was neither more n$r less than finding that a tenant must implement
his lease ; but here there is not a word in the tack about dung.
Loan Glkklee. — I see no reason for altering. It is no doubt stipu-
lated that the tenant is to consume the whole fodder, except that of
the last crop, and to manage the form according to the rules Osgood
husbandry ; and the whole allegation on the part of the landlord is,
that it is not consistent with such rules to reserve any, dung at all,
but that it ought to have been entirely laid out on the spring crops.
There was no such general rule established by the case of Finnie, as
that in all places, and in all circumstances, a tenant must lay the whole
'dung on his spring crops. It only establishes that he must lay out all
his dung as it is made, tanquam bonus vir ; but surely in a case re-
garding a form on the Pentland hills, and 50 years ago, the Court never
meant to lay down a rule of husbandry for all parts of the country,
and every period of time. The only question therefore still is, if in the
Cares of Gowrie it is contrary to the rules of good husbandry to re-
serve dung for the autumn crops of wheat ? The stipulations as to the
818 CASES DECIDED IN THE
form of Loan are only alluded to for the purpose of showing what the
landlord himself considers to be good husbandry; and if he had thought
otherwise, why did he not challenge the practice of reserving the
dung during the course of the tack ? He insists that the rules of
good husbandly should be reversed at the end of the tack, that he
may benefit by it, and wants to make the farm steelbow at the ten-
ant's expense, rather than his own. If the tenant followed during
the previous years* without challenge, the very same course which
he did the last, I do not see how the landlord can insist on a differ-
ent rule for the last year* As to the straw, be is no doubt taken
bound to consume it ; but the challenge here is as to his having
straw in June* But he was surely entitled to have as much as he
might have consumed before Martinmas. The very prayer of Allen's
petition to the Sheriff is not for finding that all the dung was to be*
long to him* but only that part which should have been applied to
the spring crops ; which brings it just to the question, whether any
part should have been so applied ? He is now, therefore, going be-
yond the limits of his own petition.
Lord* Pitmilly.— I formerly differed from the interlocutor, and I
still retain my opinion. I cannot reconcile the judgment to the de-
cision in the case of Finnie, and others following it, as fixing a ge-
neral rule ; and in Finnic s there was no express clause binding the
tenant to consume the fodder, as there is here.
Lord Alloway. — The more the case is canvassed, the more clear
does it appear to me that the judgment is right. The averments of
the tenant as to his modes of management have never been denied
in such a way as to lead us to doubt their accuracy, or render it ne-
cessary to* allow a proof of them. Finnie's case is no authority to
tie us down in the circumstances which occur here. The form there
was steelbow, — the tenant could not sell an ounce of dung, — and the
price was merely held out to him as an inducement to gather dung.
The bear seed-time in general is not till after Whitsunday, by which
time the tenant has removed from the houses, and of course can
make no dung to be paid for. The tenant here, too, was bound to
leave follow, and the incoming tenant could not possibly have got
dnng for it, if it had all been expended on the spring crops. I still
retain my opinion that the interlocutor is right.
Lord Justice-Clerk. — I likewise concurred in the judgment for-
merly, in pronouncing which we do not need to overturn any gene-
ral rule ; and I have not altered my opinion. My only difficulty was
as to the straw ; but I think the finding is no more than this, that at
the time there was no more straw on the form than was necessary for
consumption before Martinmas.
Respondent'* Authoritiet^-F'vutixt, June 27. 1767, (15260) ; Pringle, June 30. 1796*
<6575) ; E. of Wemyss, June 16. 1801, (Ap. Tack, 7); Forrester, Feb. 19. 1808,
(F. C.)
A. Pearson, W. S— R. Kennedy, W. S.~Agents.
COURT 4fF SEBSION. *19
J. Campbell and Others, (Macalister's Trustees,) Pursuers-— No. 130.
Cockburn—Broxvn.
K. M'Doxalb Macalistke, Defender. — Greenskields — More.
DmuOim— Presumption* — An opulent uncle having advanced money /or the educa-
tion and outfit of nil nephew during his minority, and who was in poor circum*
stances, and having entered it in hii books, but having died without requir-
ing repayment, or talcing any document of debt— Held that it was to be presumed
that the advances had been made animo donandi, and that hit trustees were not
entitied, after his death, to insist on repayment.
The late General Keith Macalister was the uncle of the de- j«n. 18. 1827.
fender, whose father was tenant of a small farm in the highlands ln DmiI0H.
of Scotland ; and the General having acquired a large fortune in Lord Meadow*
India, and having returned to London, desired that the defender, bank*
who was his namesake, and then about 14 years of age, should be
sent to him. He accordingly went to London; and after reading in
the General's house for some time, was placed by him at school,
and afterwards obtained through his means an appointment as mid-
shipman of an East Indiaman. The General was at the expense
of his education and outfit, and occasionally advanced money to
enable him to maintain the rank in which he had placed him. On
the death of the General, it was found that the sums so expended
by him were regularly entered against the defender in his books ;
but he had never required any document from the defender, nor
made any claim either on bim or his father for repayment, but,
on the contrary, had remitted to the latter a sum of JP1500, (which
had been left to him by another brother,) without making any
deduction. The sums so advanced amounted to jPSII. 8d. ; and
the defender being now in opulent circumstances, the trustees of
the General brought an action against him for repayment of the
amount, with interest.
In defence he maintained these pleas :
1. That the presumption is, that the advances and furnishings
made by an uncle, or other relation, who chooses, either during
the life, or after the death of the immediate parents of a minor,
to undertake the charge of his education and outfit, are given
ex pietate, and not for the purpose of establishing a debt against
the minor.
2. That such a relation making these advances, during the
life of the parents of the minor, can make no claim against the
minor which the parents themselves could not do ; and his claim,
if well founded at all, lies against the father, and not against the
minor.
«ft CASES DECIDED IN THE
8. That the father can make no claim against his son, however
prosperous he may become in after life, for the expense of his"
maintenance, education, and outfit, during minority.
On the other hand, the plea of the pursuers was, that donation
is not in dubio to be presumed ; and they contended, that as the
advances were made by General Macalister, without any legal or
natural obligation being imposed on him, he thereby became the
defender's creditor ; and that even if he had alimented him in his
own house, be would have been entitled to ft recompense, seeing
that the defender was then minor.
The Lord Ordinary * found it admitted that the father of the
' defender was alive, and not incapable of alimenting and educate
' ing his son at the time the advances in question were made by
* the late General Macalister for his behoof; that it is not alleged
' that any agreement or paction relative to the said advances was
* made betwixt the said General Macalister and the father of the
* defender, either on his own account, or as administrator of his
' son: Therefore that it must be fairly presumed that the same
' were not piade with the view of being charged as debts either
' against the one party or the other, but animo donapdi ; and that
* this presumption is strengthened and confirmed by the admitted
' circumstance, that no claim for reimbursement ever w&s made
' against the defender by the General during his lifetime, and.
* that a large sum of money was paid to the defender's father*
< without deduction being made on account thereof: Therefore
* assoilzied the defender, and found him entitled to expenses.'
To this interlocutor the Court unanimously adhered,
Lord President. — I think the interlocutor is right, and indeed
stronger cases have occurred than the present, where repaymept of
advances has been refused. In particular, I may refer to the case of
M'Dongal's Creditors *, M'Dougal, (31st January 1804, No. 21,
Ap. Bankrupt,) where it was found that the creditors of the late
Mr. M'Dougal were not entitled to insist for repayment from his
eon of sums of money advanced to purchase him a commission in the
army, and for his support, all of which were regularly entered in
Mr* M'Dougal's books. The same question occurred in the case
of Norval of Boghall, where his executors tried to recover money
which he had advanced for the son of a poor neighbour, but without
success, In neither of these cases was any acknowledgment taken
from the alleged debtor ; and it was therefore held that in the cir-
cumstances donation was to be presumed, and.tbat it was of no im-
portance that the party advancing the money had entered it in his
books.
COURT OF SESSION; mi
Lord Baagiay.— The dreumtanee of the General making the en-
tries in his books merely proves that he kept an accurate account
of all the money he expended, but not that be intended to insist on
repayment of the amount.
Loans Cjuuoub and Gillies concurred.
J. Bridges, W. S. — M. Macdonald, W. S. — Agents.
W. Wasdel, Advocator-— MonUilh. . No. 131.
R. Park, Respondent.— vSZwk,
This was a question of expenses, depending on the conduct Jan. 18. 1827.
of the parties. The Lord Ordinary found Waddel entitled to jw division.
them, and the Court adhered. Lord Eidin.
J. Hamilton, W. S. — Mack and Wothsbspooh, W. S.— Agents.
D.
S. Graham, Advocator. — A. M'NeilL Jfo. 132.
W. Martin, Respondent. — Graham Bell.
s
This was a special case, in which the Sheriff of Dumfries-shire Jan. 18. 1827.
assoilzied Martin from a claim on the part of Graham for de* 2d division.
fisery of a bill The Lord Ordinary remitted simpliciter ; and Ld. Cringietie.
the Court adhered. M K.
R. Kennedy, W. S. — W. Little, — Agents.
J. Russel, (Trustee of the Falkirk Union Bank,) Pursuer.— No. 133i
Baird.
R. Glen and Others, Defenders. — JPNeill.
JfcsWftnftssi Stdetf—SettUd Acc***t~-\t having been stipulated by the ori>
giaal contract of a partnership that the books should be balanced annually on
the 15th of May, and that the representatives of a deceasing partner should be
settled with by a medium struck between the annual balance prior to his death
and the period of it; and the company having, by a subsequent resolution, de-
clared that the balance should be struck annually on the 30th of April ; and the
balances having been made accordingly— Held that the balances so struck- could
not be altered, but must be considered -as correct, and conclusive against all con-
Ths late Alexander Glen was a partner of the Falkirk Union Jan. 19. 1827.
Bank. By the terms of the contract, which wa$ executed in 1802) iw^^ugmm
it ww provided that the books should be regularly balanced upou Lord Meadow*
the 15th dt May yearly ; — that upon the dead) of any partner, hank,
fc interest in tbe slock and profits should cease, and that his Ha
CASES DECIDED IN THE
3. That the father can make no claim against his son, however
prosperous he may become in after life, for the expense of his
maintenance, education, and outfit, during minority.
On the other hand, the plea of the pursuers was, that donation
is not in dubio to be presumed ; and they contended, that as the
advances were made by General Macalister, without any legal or
natural obligation being imposed on him, he thereby became the
defender's creditor ; and that even if he had alimented him in his
own house, be would have been entitled to a recompense, seeing
that the defender was then minor.
The Itord Ordinary * found it admitted that the father of the
c defender was alive, and not incapable of alimenting and educate
' ing his son at the time the advances in question were made by
* the late General Macalister for his behoof; that it is not alleged
* that any agreement or paction relative to the said advapces was
* made betwixt the said General Macalister and the father of the
4 defender, either on his own account, or as administrator of his
* son: Therefore that it must be fairly presumed that the same
' were not made with the view of being charged as debts either
4 against the one party or the other, but animo donandi ; and that
' this presumption is strengthened and confirmed by the admitted
' circumstance, that no claim for reimbursement ever was made
' against the defender by the General during his lifetime, and
' that a large sum of money was paid to the defender's father*
* without deduction being made on account thereof: Therefore
* assoilzied the defender, and found him entitled to expenses.'
To this interlocutor the Court unanimously adhered.
Lord President— I think the interlocutor is right, and indeed
stronger cases have occurred than the present, where repayment of
advances has been refused. In particular, I may refer to the case of
M'Dougal's Creditors v. M'Dougal, .(31st January 1804, No. 21,
Ap. Bankrupt,) where it was found that the creditors of the late
Mr. M'Dougal were not entitled to insist lor repayment from his
son of sums of money advanced to purchase him a commission in the*
army, and for his support, all of which were regularly entered int
Mr* M'Dougal s hooks. The same question occurred in the case
of Nonral of Boghal), where his executor* tried to recover money
which he had advanced for the son of a poor neighbour, hut without)
success, In neither of these cases was any acknowledgment taken
from the alleged debtor; and it was therefore held that in the cir-
cumstances donation was to be presumed, andibat it was of no im-
portance that the party advancing the money had entered it in bia
books.
COURT OF SESSION. «£1
Lord Baxghay,— The cftfeumstaoce of the General making the en-
tries in his books merely proves that he kept an accurate account
of all the money he expended, but not that he intended to insist on
repayment of the amount.
Loans Caaxou and Gilliks concurred.
J. Bridges, W. S. — M. Macdom ald, W. S. — Agents.
W. Wajddel, Advocator — MonUilh. No. 131.
B. Pari, fiespondent.— «$fttw,
Tkib was a question of expenses, depending on the conduct Jan. 18. 1827.
of the parties. The Lord Ordinary found Waddel entitled to jw Division,
them, and the Court adhered. Lord Eidin.
J. Hamilton, W. S. — Mack and Wothsrsfoon, W. 8.— Agents.
D.
S. Graham, Advocator.—^. ATNcUL Jf0- 132.
W. Martin, Respondent. — Graham Sett.
This was a special case, in which the Sheriff of Dumfries-shire Jan. 18. 1827.
assoilzied Martin from a claim on the part of Graham for de» 2d DlTI8IOW#
izvery of a bilL The Lord Ordinary remitted simpliciter ; and u. Cringietie.
the Court adhered. M'K.
R. Kxwnkdy, W. S. — W. Littlk, — Agents.
p J. Russel, (Trustee of the Falkirk Union Bank,) Pursuer. — No. 133.
Baird.
B. Glen and Others, Defenders. — McNeill.
aft***? Cmfimi foufifr SettUd AcenmL— It having been stipulated by the on.
giaal contract of a partnership that the books should be balanced annually on
the 15th of May, and that the representatives of a deceasing partner should be
settled with by a medium struck between the annual balance prior to his death
and the period of it; and the company having, by a subsequent resolution, da*
dared that the balance should be struck annually on the 30th of April ; and the
balances hating been made accordingly— -Held that the balances so struck could
not be altered, but must be considered aa correct, and conclusive against all con-
cerned.
Tab late Alexander Glen was a partner of the Falkirk Union Jan. 19. 1827.
Bank* By the terms of the contract, which was executed in 1802, lgT
U was provided that the books should be regularly balanced upon Lord Meadow*
the 15th of May yearly ; — that upon the deatl) of any partner, Dank.
Us interest in the stock iod profits should cease, and that his H#
t
«» CASES DECIDED IN THE
• •
share should vest in the other partners ; but that the company
should * be bound to account to the representatives of such deceased
* partners for the value of his share or shares, and interest in the
* profits thereof, as ascertained by a medium struck between the
' general annual balance of the company's books immediately pre-
c ceding and (hat immediately following the death of such partner.9
By a resolution of the company in 1805, the day for striking
the annual balance was changed from the 15th of May to the
30th of April, and the balances were thenceforth made up ac-
cordingly, and in particular they were struck on the 80th of
April 1808.
Glen died on the 18th of May of the same year, and on the 30th
of April 1809 another annual balance was struck. On the 12th
of December thereafter, the cashier paid to Glen's representatives
JE1500, for which an acknowledgment was given in these terms : —
( I have received your remittance of fifteen hundred pounds ster-
4 ling, which I, as factor for the tutors and curators to the child-
* ren of the deceased Alexander Glen, have applied to account of
* the shares held bf the said Mr. Glen in the stock of the Falkirk
* Union Bank ; and whatever the value of the said shares, when
* adjusted agreeably to the company's contract, may exceed the
* above sum, the Bank will further account for the same ; and if
4 it shall turn out less than the said sum, I oblige myself to ac-
4 count to the Bank for the said deficiency .'
The estates of the Bank were sequestrated in 1816, and Russel,
as trustee, then brought an action of count and reckoning against
the defenders, the representatives of Glen, founding on the above
letter, in which he contended, That the books of the company ought
to be balanced as on the 15th of May annually, in terms of the con-
tract ; or that, at all events, the balances struck in each year should
be opened up; and that, in making up the new balances, all omis-
sions and -errors should be corrected, and all the debts due to the
Bank, which were desperate or irrecoverable, should be taken into
consideration, and distinguished from those which proved available,
so that true and accurate balances, agreeably to the real and ac-
tual state of the Bank's business, as at the period of Mr.
Glen's death, might be -ascertained. On the other hand, Glen's
representatives maintained, That it was not competent to open up
these balances, nor to take into consideration any debts which
might eventually have turned out bad; that the balances of
April 1808 and 1809 in like manner could not be disturb-
ed ; and that the value of the shares must be judged of accord-
ingly.
The Lord Ordinary found, < That at a general meeting of
COURT OF SESSION. «K
■
c the partners of the company held on 12th November 1805, it
4 was resolved to alter the day for the annual balance of the com-
' pany's books, required by the contract, from 15th May to 80th .
( April in each year, and that thenceforward the books were
c brought to an annual balance as at 80th April only> and that
* these annual balances were adopted and acted upon by all con*
' oerned, and must be held as coming in place of the annual ba-
4 lances of 15th May, specified in the contract : That the annual
* balances struck in the company's books previous to the 80th
( April 1808 cannot now be altered or disturbed, but must be
' held as correct ; and remits to an accountant to report, upon
' these principles, the true balances of the company's books as at
4 80th April 1808 and 80th April 1809, and the value of Mr.
4 Glen's interest in the stock and shares of the company, as ascer-
4 tained by a medium struck between those two balances, in terms
4 of the contract.9
Both parties reclaimed,— Russel- maintaining that all the balan- .
ces should be opened up, — and Glen's representatives, that those
of 1808 and 1809 should remain untouched. The Court refused
the reclaiming note for Russet ; but altered on that for Glen's re-
presentatives, and found that the balances of 1808 and 1809 could
not be opened up. *
The Court were of opinion, that as it had been stipulated by the con-
tract that the rights of a deceasing partner should be regulated and
ascertained by a medium struck between the general. annual balance
immediately preceding and that immediately following his death,
this was a fundamental condition of the contract or species transac-
tkmis between the parties, and therefore it was not competent to
disturb these balances.
D. and A. Thomson, W. S.—J. Mackenzie, — Agents.
R. Hill, Pursuer.— Maidmcnt. No. 134.
General A. Leith Hay, Defender.— Gordon.
A^-J^A^.— -Circumstances under which an action of non-entry waa dismissed.
Hill, as superior of Templelands, brought an action of non- Jan. 19. 1627.
entry against General Hay, alleging that certain lands belonging lwDlvmoK,
to him were included among those of which he was superior. Lord Meadow-
The question came to be one of identity ; and the Lord Ordinary ba"k-
and the Court, in respect that Hill had failed to condescend upon
evidence suffipient to identify the lands possessed by the defender
with tbpse claimed, assoilzied him with expenses.
J. B. Gbacib, W. S— R. Burnett, W, S<— Agents.
tol. v. ,'p
284 CASES DECIDED IN THE
No. 135. J- Dougall and Others, Advocators. — Scl.-Gen. Hope —
J. STNeitt.
. W. Hutchison and Others, Respondents. — F&rsyth-^ockburn.
Property— Public PoHm. *~ Under a polios act allowing the commissioners oP
police to line buildings in streets for the benefit of the public, neighbouring pro-
prietors are not entitled to insist that a party who has pulled down his house
shall, in erecting a new one, line back his wall, so as to widen the street.
Jan. 19. 1627. The respondents were proprietors of a comer house, having
A ^ no area behind, in the barony of Gorbals, situated at the juoc-
2d Division. . ' * •■*■»«•• *
LordMacken- tlon °* a ,ane <*"** Kirk street with the Main street of
»«• Gorbals,- which is the principal entrance to Glasgow from the
B* south. This house having fallen into disrepair, a decree for re*
pairs was pronounced by the Bailies of Gorbals ; but the Glas-
gow Bridge Commissioners having offered the respondents £200 f
if they would take down the house, and in rebuilding line back
the front towards Main street a few feet, they consented, and
pulled down the house.
According to the usage of the barony, it is necessary* before
erecting any building, to raise a process of lining before the Bai-
lies; and by the Police Act, 4th Geo. IV. c. 71, it is provided,
* That as the said bailies have been in use, upon report of their
* birleymen or liners, and after inspecting the premises, and hear-
' ing parties, to line the front of any houses or buildings about to
' be rebuilt in front of the streets, lanes, or passages within the
* said barony, so it shall and may be lawful for the said bailies,
f or any one of them, and they are hereby empowered, upon com-
* plaint and application made to them by said commissioners, or
4 any individual neighbouring proprietor, after visiting the. pre-
c mises, and hearing parties concerned, to line the front of any
' house or building to be erected in any of the streets, passages,
' or lanes within the said barony, in such manner as they may see
' necessary for preserving the regularity of the line of building in
' the said streets, passages, or lanes.1
Before proceeding, therefore, to erect their new house, the re-
spondents presented a petition for lining, which they served on
Taylor, the conterminous heritor in Main street ; but one of the
respondents being himself proprietor of the neighbouring tene-
ment in Kirk street, they did not consider it necessary to sumfnon
any of the heritors in that street On this petition the
remitted to the birleymen, who, after inspecting the premises,
ported that the front to Main street should be lined according to
the agreement with the Bridge Commissioners, and the front to-
wards Kirk street, according to the line of the old wall. Decree of
COURT OF SESSION. fta&
lining was accordingly pronounced in these terms, and tbe respond-
ents commenced building their house. They were interrupted,
however, by a hill of suspension and interdict presented by Dougall
and others, proprietors of houses in Kirk street, who contended
that they were entitled to insist on the front of the new building
towards Kirk street being put about eight feet further back than
the old bouse had been, for tbe purpose of producing a regular
line in that street On this bill the Lord Ordinary remitted to
the Bailies of Gorbals c to recall tbe decree of lining complained
* of ; to allow such of the complainers as can show themselves to
' be neighbouring proprietors to appear and be beard in the appli-
4 cation; and thereupon to do as to them shall appear just, and
* agreeable to the statute.* The Bailies accordingly recalled then-
decree, and, after having heard the advocators, pronounced this
interlocutor:—
' Finds that at common law, and independently of the statute
regulating the police of the barony of Gorbals, this Court, in
lining or ascertaining the boundaries of the properties of pri-
vate individuals, has no power, upon tbe grounds of public con-
venience, to deprive these individuals of any considerable part
of their property, by compelling them to recede with their build-
ings, or otherwise, without an adequate compensation ; Smellie
v. Struthers, 12th May 1803 : Finds that the clause of the ex-
isting police act for the barony of Gorbals, 4th Geo. IV. c. 71,
which authorizes the Court to line the fronts of houses in such
manner as may be necessary for preserving the regularity of the
line of building in the public streets, does not convey such a
power, or provide such a compensation : Finds that in terms of
the clause of said statute which authorizes, this Court to remove
out-stairs, out-sbots, buildings, erections, &c, and which provides
that the damage thereby occasioned to the proprietors, for the
purpose of public convenience and accommodation, shall be de-
frayed out of the public funds arising under the act, the appli-
cation must be made at the instance, not of private individuals
like the complainers, but of the commissioners of police : Finds
it not alleged by the complainers that, by the decree of lining
complained of, the pursuer is authorized to exceed the limits of
his old tenement now taken down, on the south where it fronted
Kirk street, or to encroach to any extent upon the area of the
said street ; and finds accordingly that the complaint made by
the complainers is not for the prevention of an attempted en-
croachment, but for the removal of an old building, or at least
for preventing the pursuer from occupying with a new building
a pert of the area of ground upon which the old building was
226 CASES DECIDED IN THE
* erected ;* and they decerned of new in terms of the former de-
cree of lining.
Dougali &c. thereupon brought an advocation, in which they
stated that they were willing to allow the respondents any ' da-
' mages which may be fairly claimed4* in consequence of the loss
of property which would be occasioned by the lining contended
for by them, and they pleaded, that under the police act it was
imperative on the Bailies, on the suit of parties interested, t6 line
new buildings, so as to produce regularity in the streets ; and at
all events that the decree was invalid, in so far as the Bailies had
not, in terms of the statute, personally inspected the premises.
The Lord Ordinary remitted simpliciter, with expenses, and
the Court unanimously adhered.
The Lord Ordinary observed in a note :—
The Lord Ordinary made the remit to the Magistrates, simply because
' he thought it a case in which the opinion of the local Judge ought to
be given on the case fairly before htm. The Lord Ordinary now
concurs in that decision. It appears to him, that although the sta-
tute gives a power to the Bailies to line the front of any house in
such a manner as they may see necessary for preserving the regu-
larity of the line of building, yet it does not impose upon them so very
harsh a duty as that of confiscating all private property that happens
to interfere with the regular line, or sufficient width of the street,
whenever that property comes to have the houses on it taken down.
Such a duty might natural] y be imposed on the governor of a town
which was in the occupation of an enemy, who wished to make it
more regular for the purpose of military defence, and treated the in-
habitants and their property with hostile disregard. But it is not
possible to believe this was intended to be enacted by a British sta-
tute for part of the suburbs of Glasgow. The power must have been
meant to be exercised with equitable discretion, i. e. where it could
be done without serious loss to the party, and certainly not in audi
a case as the present, where the new line would cut off a great part
of the only stance the respondent has for his house.
Load Glenlee. — I ean see no reason for differing from the Lord
Ordinary. As to any original or inherent right, independent of sta-
tute, I can. understand how all operations that narrow the street may
be prevented or removed ; but I have no idea that, in order to make
a street wider, you may make a party give up part of his property
without recompense. No doubt, under- the act of Parliament, the
Bailies are entitled, for behoof of the public, when a house is rebuild-
ing, to line it back on giving compensation, and for the benefit of the
, community ; but the statute gives no right, either to the Magistrates
or private persons, to widen streets for the benefit of individuals.
The provision as to calling neighbouring proprietors is not with
\
COURT OF SESSION. 227
aay view of enabling them to insist on the street being made wider,
but merely to see that no encroachment is made on their properties,
or on the street as it stands. If the parties here wish the street
wider, let them buy the property.
Lord Pitmilly. — I am entirely of the same opinion. The statute
gives a discretionary power to the Magistrates, which they are to
exercise for the benefit of the public, and in the present case they
hare exercised a sound discretion.
Lords Justice-Clerk and Alxoway concurred.
T. Mbgget, W. S— D. Fisher,— Agents.
A. Thomson, Advocator.— Jameson. No. 136.
T. Harvie, Respondent— 'Skene.
Landiard ami Ttwuifi— C3b*j*.— Circumstance* in which a party who had taken a
piece of watte ground for one or two years, was entitled, at his removal, to the
materials of certain erections made by him thereon.
Thomson was proprietor of a building in Glasgow some time Jan. 19. 1827.
used as a theatre, with a piece of vacant ground adjacent, des- 2d Dmuoir.
tined for building-stances. In 1815 he let the .whole premises Lord Macken-
to Dunbar and Company for four years, by a missive which pro- ^fa
Tided that they should be at liberty to remove the additions they
might make, but obliged them to leave the premises in the same
state as at their entry, should Thomson not approve of taking
die additions at a valuation. On Dunbar and Company's re-
moval in 1819, Thomson let the building to Mason for three
years to be used as a minor theatre, he being authorized to alter
the interior to suit his own purposes, and taken bound, at the end
of the lease, * to realter and reconvert the whole premises into
* the same state in which they now are ;' and he also granted to
Harvie, the respondent, the following missive drawn out by him-
self : — * Mr. Thomson lets to Mr. Harvie the ground to the
* north of the entry in front of the old theatre, Dunlop street, on
* which a shed is erected by Dunbar and Company, Mr. Harvie
* being obliged to leave 18 feet clear from the theatre to what-
c ever shed he may retain or build thereon ; in short, to conform
' himself to Mr. Mason's tack, which he has seen, add that from
* Whitsunday 1819 to Whitsunday 1820, at a rent of seven guineas
* per annum, and Mr. Thomson is to renew the same annually
* during the currency of Mr. Mason's lease, viz. three years at
( same rent, except in case of sale, in which case Mr. Harvie
' must remove immediately, and is to have liberty of taking away
' the present or what building he may erect, paying rent to him,
228 GASES DECIDED IN THE
' to the time of removal, at the above rate per annum from last
' term's payment.*1 Dunbar and Company had erected on the
premises a wooden shed roofed with tile, which they used as a
coach-shed, and which was purchased by Harvie at his entry,
and by him converted into a slight building of brick. Harvie was
allowed to possess the property for the whole period of three
years, and, from neglect to give proper warning, he remained in
possession for a fourth year. At the term of removal in 1824,
Harvie having intimated an intention to carry away the materials
of the buildings erected, by him, Thomson presented a petition
to the Magistrates of Glasgow for an interdict ; and Harvie, on the
other hand, presented a counter petition to have it found that
Thomson was* bound to pay him the value of these erections, if
allowed to remain on the premises. After some procedure, the
Magistrates pronounced an interlocutor containing various find-
ings, and decerning against Thomson for £15, the estimated
value of the materials of the buildings. Thomson thereupon
brought an advocation, in which the Lord Ordinary remitted sim-
pliciter ; and the Court, while they recalled his Lordship's inter-
locutor, and advocated the cause with the view of avoiding an
affirmance of the special findings in the Magistrates'1 interlocutor,
likewise decerned against Thomson for payment of the £\5> with
expenses.
Lord Justice-Clerk. — Although the judgment of the Magistrates
is substantially right, it is not necessary to affirm the various find-
ings in it, and we must guard against that. Bat it appears to me
that the meaning of parties is clearly shown by a reference to the
lease of Mason, who was entitled to take away his additions, &c- ; and
it is really a very judaical construction of the terms of the missive to
limit the right to carry away erections to the case of removal before
the expiry of this short lease of three years, — more especially as it
was drawn out by Thomson himself, and ought therefore to be con-
strued against him where there is anything ambiguous, and as the
buildings were erected chiefly with the materials of the former shed
purchased by Harvie from Dunbar and Company.
Lord Glenlee. — I would' not wish to acquiesce in the finding of the
Magistrates ; for this case is not to be looked on as if it were a tack
of lands, but rather a bargain for the temporary use of a piece of
waste ground intended for building, and we must not regulate it by
the ordinary rules of regular tacks. There is, no doubt, an ambiguity
m the missive; but, in construing it, we are entitled to look at what
is equitable and reasonable in the circumstances of the parties ; and
besides, I am not sure but that, in grammatical construction, the
provision as to erections is intended to be joined to the whole of the
COURT OF SESSION. 229
nutaire, and not merely to the special case of the party removing
before the expiry of three yean.
Lords Pitmillt and Alloway concurred*
Campbell and Macdowall, — Macmillan and Grant, W. S. —
Agents.
W. MT^urb, Advocator.— Cockburn—A. ATNeUl. No. 137.
W. Jaffray Jun., Respondent.— Jij^ey — Wilson.
Procnt—Birpenies. — Incompetent, pending an action in the Jury Court, to apply
to an Inferior Judge to obtain production of books to be founded on in the ac-
tion, instead of applying by motion to the Jury Court; and held to be no ground
for being relieved of the expenses of litigation thereby occasioned, that a party
against whom it was brought had returned no answer to several previous extra-
judicial applications by letter and protest.
During the dependence in the Jury Court of an action of da- Jan. 19. 1827.
mages at the instance of MXure against Jaffray, and before any 2d t^J^
order for a condescendence had been pronounced, M'Lure's agent Lord Macken*.
in Glasgow wrote to Jaffray, of date 4th March 1824, at which zic*
time the Jury Court was not sitting, civilly requesting him to ' *
deliver up certain books of a company of which M'Lure had
been a partner along with Jaffray's brother, ' with the view of
( enabling his counsel to prepare a Condescendence.' No answer
having been returned, M'Lure's agent wrote a second time, a
few day* afterwards, repeating the request, and adding, * If I
' do not hear from you before one o'clock to-morrow afternoon
' that you are willing to deliver up the books, I shall be under
' the necessity of taking immediate steps against you for the pur-
• pose of attaining that object.' Jaffray, having returned no an-
swer to this second application, he was, on the 6th of April follow-
ing, served with a protest in name of MTLure, bearing, that unless
the books ' were delivered to the said William MXure before 11
€ o'clock of the forenoon of the following day, he would im-
' mediately thereafter present a petition and complaint against
' the said William Jaffray to the Court on the subject, or would
* take such other steps against the said William Jaffray as he
' might be advised.* Jaffray treated this protest in the same way
as the letters, and M'Lure thereupon the next day presented a
petition to the Magistrates of Glasgow, praying to have Jaffray
ordained to deliver up the books in question, or (as limited in
some of his subsequent pleadings) to produce them in the hands
of some respectable accountant for a reasonable period,' that he
might have access to them. The Magistrates, after some pro-
cedure, assoilzied Jaffray, with expenses, of date 14th May, re-
230 CASES DECIDED IN THE
serving to M'Lure to apply to the Jury Court for'a diligence.
This MT.ure accordingly did; and on a motion made in the Jury
Court on 19th May, an order was pronounced, allowing him to ex-
amine the books in Jaffray's hands; and thereafter the Magistrates
of Glasgow refused a reclaiming petition which had been given
in against their judgment by M*Lure, who thereupon brought the
present advocation as to the decerniture for expenses against him,
and contended that the whole litigation before the Magistrates
was owing to Jaffray not having answered the several applications
made to him, and consented to an examination of the books, which
the Jury Court ultimately ordered.
The Lord Ordinary advocated the cause, and found that no
expenses were due by M'Lure to Jaffray ; but the Court unani-
mously altered, and remitted simpliciter.
Lord Justice-Clerk. — Since it became customary for agents to
make a charge for every letter written by them, tbe practice of writ-
ing letters upon every occasion has become a great deal too common;
and we certainly will not encourage it by laying down a rule, that
when no answer is given, the expenses of any subsequent legal pro-
ceeding are to follow1. We must look here to the character of the
proceedings, and we see that this advocator, instead of making a
- motion in the Jury Court, goes to a Court which had nothing to do
with the matter. He had no right to make this the subject of a
separate litigation, when he had his proper recourse in tjbe Jury
Court ; and having raised a process which never ought to have bee*
raised, he must undoubtedly be liable in the expenses, of it
Lord Pitmilly. — I entirely concur. This party applies for delivery
of the. books before any order for a condescendence; and although
the Jury Court was not sitting, he ought to have waited till they
met, and made his motion, and the Court would have allowed hi*n
tbe necessary time for preparing his condescendence. But, instead
of doing so, he brings this incompetent and improper action, which
having been dismissed, it necessarily follows that be should be sub-
jected in expenses. There was no occasion on the part of Jaffiay
to answer the letters sent him, and it is proper that proceedings of
this nature should be checked.
Lords Glenlee and Alloway concurred.
R. Kennedy, W. S— W. Mercer, W. S— Agents.
COURT OP SESSION. 881
J. King, Suspender.*— Skene. No. 138.
W. Shieba, Charger.— Montcith.
Principal and Agent,-" -Held that where a party hat acted professedly in the ca-
pacity of agent, a petitory action against him, and not against his principal, is
Shiska raised an action against King, before the Magistrates Jan. S3. 1827*
of Glasgow, for payment of £6 : 13 : 5. In support of his claim ltT j)lYtBiaKm
he stated, that King was agent in Glasgow for the Falkirk Bank- Lord Meadow,
ing Company ; that in that capacity Shirra had purchased from b^k'
him two bills for JP100, which had been dishonoured, and for
which he had paid him 10s. per pound, being £50 ; that at the
same time he had discounted a bill with him as agent of the
Bank, from the proceeds of which King had unwarrantably re-
tained the sum sued fpr, on the allegation that it was on account
of expenses incurred relative to the dishonoured bills.
kt f%n fihiua entered upon the merits, without making any objection
as to his not being the proper party; and decree having been pro-
nounced against him, he brought a suspension, in which he
pleaded, That as both the purchase of the bills, and the discount-
ing of that from which the sum sued for was alleged to bave
been retained, took place with him in the capacity of agent for
the Falkirk Bank, he was not the party who ought to have been
called.
To this it was answered,
1. That the objection was too late, as King had joined issue
on the merits ; and,
St That it was an illegal act on his part to retain any part of
the proceeds of the discounted bill, for which he was personally
responsible.
The Lord Ordinary suspended the letters simpliciter, 'in re-.
* spect the proper party was not called in the Inferior Court,*
and found the suspender entitled to expenses in this Court.
Both parties reclaimed. Shirra maintained that the interlocu-
tor was erroneous ; and King, that he ought to have been allowed
expenses in the Inferior Court;
The Court refused the reclaiming note for Shirra, and found
expenses due to Sang both in this and the Inferior Court
T. Kbr, W. 8.— D. Brown, W. St—Agents.
£92 * CASES DECIDED IN THE
No. 139. C. ITLeax, AdTocator.->J. JTNeiU.
Mrs. Bell and Mrs. MTLinlay, Respondents.—/. M. Bell.
Process— Slat. 6. Geo: IV. e. 12b.~Jurisdietion. — Held incompetent for a Sheriff
to stop execution of letters of horning proceeding on on extracted decree in ab-
sence pronounced by him.
Jan. 23. 1627. Christian M>Lean brought an action before the Sheriff of
lar Ditiwoh. Lanarkshire against the respondents* concluding for wages, on
Ld. Corehotutv the ground that she had been hired as their servant, and had been
illegally dismissed. The Sheriff having decerned in absence, the
decree was extracted, on which she obtained letters of horning,
• and gave the respondents a charge. Before it expired, they pre-
sented a petition to the Sheriff, stating the circumstances, con-
signing the expenses, and praying to be reponed in terms of the
statute 6th Geo. IV. c. 120, and relative act of sederunt.
The Sheriff-substitute of the Middle Ward thereupon stopped
execution, and revived the action, as if the decree had not been
pronounced. The respondents, then obtained decree of absolvi-
tor in absence, against which M'Lean (after the lapse pf about
three months) reclaimed, and contended that it was incompetent
for the Sheriff to stop execution, because the diligence consisted
not of his precept, but of letters of homing. The Sheriff-sub-
stitute, however, refused the petition, • in respect that the act
* 6th Geo. IV. c. 120, § 48, enacts, < That where a decree has
" passed in absence in any Inferior Court, or in the Court of Ad-
u miralty, and has been extracted, it shall be competent to apply to
" the Court, in which such decree was pronounced, to have the
" decree recalled ; and on consignation in the hands of the clerk
*cof the Court of the expense incurred, the said Court shall have
power to stop execution, and repone the defender, and revive the
action, as if decree bad not been extracted ;' and in respect
* that, by the late Act of Sederunt relative to the form of processes
* in civil causes before the Sheriff Court, c. 18, § 3, it is enacted
That when a decree has passed in absence, and has been ex-
tracted, but has neither been in whole nor in part implemented,
it shall be competent to apply to the Sheriff to have the decree
" recalled, and on consignation in the hands of the clerk of Court
" of the expenses incurred, the Sheriff shall have power to
" stop execution, and repone the defender, and revive the action,
" as if decree had not been pronounced or extracted ;' and in re-
' spect that the respondents made consignation in the hands of
' the clerk of Court, and that although the petitioner has, at the
« 90th page of this petition, alleged that they had neither paid
it
cc
H
M
COURT OF SESSION. 33$
* nor consigned certain expenses, which it was imperative on them
* to have either paid or consigned, yet she has not specified what
( these certain expenses are, nor the amount thereof, but has ad-
* mitted that they had consigned the sums in the charge, which
' was all they were bound to do ; and in respect also that the
( charge cm die letters of horning was given on the 19th day of
' June, but the interlocutor stopping execution, reponing the de-
4 fenders, and reviving the action, was pronounced on the Sd day
' of July thereafter, so that the decree in absence could neither
* have been in whole nor in part implemented at the date of that
1 interlocutor ; and farther, in respect that that interlocutor had
' been nearly three months final before the petition was presented,
' and that die petitioner has shown no cause for her failure to
* reply.'
To this interlocutor the Sheriff-depute adhered ' for the reasons
4 therein assigned, and upon the grounds set forth in a judgment
* pronounced by the Sheriff-depute at Glasgow in a similar case,
* and which is subjoined in a note hereto.' In the case alluded
to, the Sheriff had found, ' that under the act of sederunt it is
' competent for the Court to recall a decree in absence, where the
4 same has not been in whole or in part implemented, whether
* proceeding on a charge on the precept or decree, or on letters of
4 horning, upon consignation in the hands of the clerk of C6urt
4 of the expenses incurred.'
M'Lean then presented a bill of advocation, in which she argued
the case at considerable length, but did not recite either the peti-
tion or the answers.
The bill having been passed, the respondents contended,
1. That as the advocation was brought of a final judgment,
whereby they were assoilzied on the merits, the bill and letters
were incompetent, in respect that they were argumentative, and
did not set forth the petition and answers; and,
52. That the interlocutors of the Sheriff were warranted by the
Judicature Act, and by the Act of Sederunt
To this it was answered,
1. That as the advocation was brought on the ground that the
Sheriff was not competent to repone the respondents, and to pro-
nounce decree of absolvitor, theform of the advocation was perfectly
correct, and sanctioned by the 50th Geo. III. c. 112, § 90, and the
45th section of the 6th Geo. IV. c. 120; and,
2. That although it is competent for a Sheriff to repone a party
against his own extracted decree, and on which a charge has been
given, yet he cannot do so where letters of horning have been
raised, where the charge proceeds by virtue of them.
231 CASES DECIDED IN THE
The case having come before Lord Corehouse in the Outer
House, and his Lordship considering the question of competency
of much practical importance, reported it to the Court, and stated
that it appeared to him that the Sheriff could not competently
stop the execution of letters of horning ; that although the origi-
nal decree was that of the Sheriff, yet, in order to obtain letters of
homing, it was necessary that the authority of this Court should
be interponed, and a decree conform pronounced ; that it was up-
on that decree the letters were issued; and although the provision
in the statute authorized the Inferior Judges to stop the execu-
tion of their own decrees, yet it conferred on. them no such power
as to those of the Court of Session, and therefore the interlocu-
tors complained of were incompetent.
The Judges having concurred in this opinion, the Court in-
structed him to proceed accordingly.
Anderson and Whitehead, W. S.— J. Lockhart, — Agents.
No. 140. D. J. Bell, Pursuer. — D. qfF. Mmcreiffl
J. Graham, Defender. — Jeffrey — Penney.
Attorney'* Certificate.— Circumstances in which decree was.allowed to go out for
expenses of a process conducted by an unlicensed attorney, who had afterwards
taken out certificates under the 7th Geo. IV. c. 44.
Jan. 2a 1827. The pursuer, Duncan John Bell, having been imprisoned by
2d Division. Graham on a warrant obtained against him from the Justices of
Lord Macken- Peace of Lanarkshire, but in which his name was by mistake in-
**' serted < J. D. Bell,' instead of < D. J. Bell/ raised an action of
damages before the Magistrates of. Glasgow, in which he obtained
decree for £2y and was found entitled to expenses. The account
of expenses then went to the auditor ; and though no demand was
made to allow decree to go out in the agent's name, Graham ob-
jected that the cause had been conducted on the part of Bell by
Harvie, an unlicensed practitioner; and therefore, that as he
could not compel Bell to pay him, Bell was not entitled to have
a decree for expenses given out, which would either have the
effect of increasing his damages, by enabling him to pocket
what he was not obliged to pay to his agent, or of evading the
statute by aiding the agent in obtaining payment indirectly of
those expenses which he could not have sued for directly in his
own name ; and it was contended that even if Bell had actually
advanced the expenses, (which was not alleged,) he was not en-
titled, by thus paying what could not legally be demanded of him>
to subject his antagonist to a claim in which he could not others
COURT OP SESSION. 2S5
wise have been made liable. To get rid of this objection) a man-
date was produced, dated at the time of raising the action, ad-
dressed to Goodwin, a licensed practitioner, by whom and Bell a
petition was presented, praying to allow decree for the expenses to
go out in his name as agent This, however, was met by the plea,
that under section 8th of the statute 25th Geo. III. c. 80, the same
disqualifications extended to a licensed practioner lending his
name to one not licensed, as attached to the unlicensed agent
himself; and it was offered to be proved by Goodwin's oath, that
the cause had truly been conducted by Harvie, and not by him.
The Magistrates then appointed Goodwin to depone; but he
having failed to do so, the Magistrates pronounced a judgment
holding him confessed, a«nd sustaining the objections to the decree
for expenses being allowed to go out Bell then gave in a peti-
tion, admitting that Harvie was truly the agent, but stating that he
had now taken out attorney certificates for the period embraced
by the cause in question under the late statute, 7th Geo. IV. c. 44,
which had a retrospective effect, and that all ground of objection
was thereby removed.- The Magistrates, however, refused his
petition, and found him liable in the expenses of this discussion,'
amounting to the same sum with the damages awarded, which
they accordingly found to be extinguished by this counter claim.
Both parties having advocated, the Lord Ordinary altered the
interlocutor, repelled the objection founded on Harvie not having
had a license, and found that Bell was entitled to his expenses in
the Inferior Court. The Court adhered.
Pursuer's Authorities. — 7. Geo. IV. c. 44; Barry, July 8. 1836, (ante, Vol. IV.
No. 492.)
Defender's Authorities. — 25. Geo. III. c. 80, § 7. 8 ; Robertson, June 29, 1826, <
(ante, Vol. IV. No. 466.)
J. Hamilton, W. S. — Campbell and Macdowall,— Agents.
C. Chbistie, Petitioner.— Sandfbrd. jj0b ^4].
Sequestration— Authority refused to make up a new sederunt-book in place of the
original, which had been lost ; but warrant granted for re-examination of the bank-
nipt.
This was an application at the instance of Christie, trustee on jan. 25. 1827.
Watson's sequestrated estate, setting forth, that after the examin- *r ■
ation of the bankrupt, the sederunt-book had been lost, and pray- I^,8IOif«
iog for authority to re-examine the bankrupt, and to make up a
sederunt-book from documents in possession of the peti-
236 CASES DECIDED IN THE
The Court granted warrant for re-examination, but refused the
petition quoad ultra.
J. B. Watt, W. S. Agent.
No. 142. E. Beattie, Suspender.— J^r*y— Graham Bell.
J. Halibukton, Charger. — Bruce* %
Reference to Oath'— Bill of Exchange. — Two obligants on a bill having brought
suspensions of separate charges thereon, on the ground that an admitted pay-
ment by one of them was to account of the buVand the charger haying, on a re-
ference by the one who had made the payment, deponed that it was not to account
of the bill ; the Court, in the suspension at the instance of the other obligant,
refused to allow him to prove that the payment was to account of the bill, to the
effect of getting rid of expenses in which they found him liable.
•
Jan. 25. 1837- Beattie, the drawer and indorser of a bill for «£1§0 accepted
. 2d Division. ^J one Brown, having received a charge at the instance of HalU
Lord Macken- burton, the holder of it, for payment of the sum in the bill, « de-
sk- < ducting any payments' which Beattie or the acceptor might
* establish to have been made to account of the bill/ brought a
suspension, on the grouads, 1. That the bill was vitiated by era-
sure in the place of payment ; and, 2, That a partial payment
of £50 had been made to account of the bill, by Brown the ac-
ceptor, shortly after it fell due. In his pleadings, however, he
offered to give up the legal objection of vitiation, provided he was
allowed credit for the alleged partial payment by Brown. This
having been declined, the litigation went on ; and in regard to
the question of vitiation, the Court (ante, Vol. II. No. 90S) re-
pelled the objection, and remitted to the Lord Ordinary to hear
parties further as to the allegation of partial payment. On this,
Beattie paid «£100 of the amount ; and in regard to the partial
payment of the remaining «£50 by Brown, Haliburton admitted
that, after the bill fell due, he had received from Brown £50; but
he added the qualification, that * besides the i?150 in the bill
c charged on, Brown was due to the charger a considerable ba-
« lance otherwise, which this payment was expressly meant to
c cover. As the balance was not correctly ascertained betwixt
' * them, and as it was possible the £50 might exceed it by a
* pound or two, the respondent desired that the charge given the
* complainer should contain the saving words of any payments be
* or Brown could show were made to account.'
A few steps only had been taken before the Lord Ordinary
under the remit, when Haliburton also charged Brown for pay-
ment, under deduction, in like manner, * of any payments which
L
COURT OF SESSION. 287
' the said William Brown and Ebeoezer Beattie can establish
1 to have made to account of the said bill.9 Brown having there-
upon presented a bill of suspension, on the ground of his alleged
payment to account, the process with Beattie was sisted till this
should be determined. This was speedily accomplished by a re-
ference on the part of Brown to the oath of Haliburton, who de-
poned that the £50 had been paid in extinction of a then exist-
ing debt, consisting of a loan of ^40 in cash, and of furnishings.
Brown's bill was accordingly refused, and he was compelled
to pay the balance of £50. Haliburton afterwards enrolled
the process with Beattie, in order to crave a judgment for ex-
penses against him. The Lord Ordinary, * in respect it is ad-
< mitted that the £50 in question has been paid by William
c Brown, found it unnecessary to proceed with any other points
' in the cause, except as to expenses," and to these he found Hali-
burton entitled. Against this interlocutor Beattie reclaimed, and
contended,
1. That the judgment in the question with Brown having pro-
ceeded entirely on the oath of Haliburton, emitted on the refer-
ence by the former, could not affect him, who had not concurred
in that reference ; and,
2. That Haliburton having admitted receiving a payment of
£50 after the bill fell due, the presumption that it was in extinc-
tion of the bill could not be redargued by the qualification added
to that admission, or at all events that he (Beattie) was entitled
to disprove that qualification, agreeably to the principle laid down
in the case of Anderson v. Rintoul, (ante, Vol. III. No. 846) ; and
be offered to do this by the books of Brown and of Haliburton
himself, and by the evidence of Brown, who had now no interest
in the issue.
The Court unanimously adhered to the Lord Ordinary's in-
terlocutor.
Ix>rd Pitmilly— I see no ground for interfering. The question now
regards expenses merely.' These were chiefly incurred in regard to
the pfcs of vitiation ; and as to the question whether the £50 was
paid to account of the hill, Brown has referred it to Haliburton's
oath, which is negative. Judgment has been pronounced accordingly,
and the sum has been paid. The fact, therefore, has been deter-
mined in the question with Brown, and we cannot try it over again
to settle the matter of expenses.
Loan Alloway*— » If Beattie could allege that there had been any
csUusion with Brown, he might be allowed to try the question over
again ; but he cannot otherwise be permitted to do so.
838 CASES DECIDED IN THE
' Lord Justice-Clerk.— I am entirely of the same opinion. It is now
proved by Haliburton a oath that this was a just demand from the
beginning, and Beattie must therefore be liable in expenses.
L. MIntosh,— J. Tait, W. S— Agenta.
No. 143. C. Russell, Suspender.— D. qfF. Moncreifl— Anderson.
J. Macdonell, Charger. — Sol.-Gen. Hope — J. Wood.
Jan. 26. 1837. This was a question as to passing a bill of suspension and in-
ltr Difhion. tenl^ °f a threatened sale by Macdonell of a property, for pay-
Biii-Chamber. ment of the price of which he had become cautioner, and for re-
Lord Newton, lief of which he held a bond, with a power of sale, oyer the estate.
D# The case was of a special nature ; and the Lord Ordinary having
refused the bill, the Court adhered.
H. Macqubin, W. S.— J. Macdonell, W. &— Agents.
No. 144. D. Hunter, Advocator.— Skene— Rutherfurd.
Hon. W. Maule, Respondent. — Murray — Campbell.
Possessory Judgment — Salmon-Fishing. — Circumstances under which a party was
found not entitled to a possessory judgment as to right of salmon-fishing.
Jan. 86. 1827. The Hon. Mr. Maule presented a petition to the Sheriff of
1st Division. Forfarshire, stating that, by virtue of a Crown charter and in-
Lord Eldin. strument of sasine, he was proprietor of the estate of Panmure,
H. with the baronies thereof, and salmon-fishings thereto belonging ;
that he had enjoyed the right of salmon-fishing along the whole
line of the shore of the Tay from the western boundary of the
parish of Barry to the point commonly known by the name of
JBuddenness, for a period of more than seven years; but that re-
cently, when he and his tenants were peaceably exercising their
right of fishing, the respondent, Mr. Hunter of Blackness, had
by violence, and without recourse to law, interrupted them via.
facti. He therefore prayed to have it found that he was entitled
to a possessory judgment, and that interdict should be granted
against Mr. Hunter.
In defence Mr. Hunter stated, That he held a grant of part
of the barony of Barry, * cum piscationibus ;* that by virtue of it
his predecessors had exercised the right of fishing salmon for
many years, and that it had only been given up during his* mi-
nority, and while he was under the guardianship of Mr. Maule ;
that the lands in the parish of Barry, belonging to Mr. Maule,
did not form part of the barony of Panmure, and he had prcxlu-
COURT t)F SESSION.
2S9
eed do title to a substantive right of fishing ex adverso of these
lands, which was essentially necessary, as they did not constitute
part of a barony ; that, further, he was not proprietor of all these
lands, but that that part of them, to the fishing ex adverso of which
he claimed right, belonged to Mr. Hunter, and formed part of the
barony of Barry ; and that, so far from having exercised such a
right of fishing opposite to these lands, Mr. Maule had expressly
excluded them in his lease of his fishings on the river Tay, and
he had not enjoyed seven years possession.
The Sheriff, after allowing a proof to the parties ' of their re-
' sportive allegations as to the possession of the salmon-fishing in
* dispute for the seven years immediately preceding the interrup-
' tions complained of in the petition,1 and after having inspected
the fishing-ground in dispute, found ' that the pursuer has estab-
' Jished that he has possessed the fishings in question, as proprie-
* tor thereof, without interruption, for the seven years imme-
4 diatery preceding the interference of the defender, complained
4 of in the petition ; that, in these circumstances, it was illegal in
* the defender to dispossess the pursuer of said fishings brevi
4 manu, as attempted by the defender ;' and therefore granted in-
terdict.
Mr. Hunter having brought an advocation, the Lord Ordinary
found, * Primo, That in this action it was incumbent on the pur-
suer to produce an ex facie title to the salmon-fishings claimed
by him ex adverso of the advocator s lands ; that no such title
has. been produced, and therefore the present action, in which a
possessory judgment is demanded, and in which a title to fish
ex adverso of the advocator's lands is founded on, but not pro-
duced, cannot be maintained. Secundo, et separatim, That the
pursuer has not established that he, by himself and his tenants,
has enjoyed and possessed the salmon-fishings in dispute ex ad-
verso of the advocator's lands without interruption, and con-
stantly and exclusively, for seven years previous to the alleged
interruptions complained of in the original petition to the She-
riff. Tertio, That although such possession had been estab-
lished, the pursuer could not in point of law be entitled to
found upon it, to the effect of entitling him to a possessory
judgment, in respect he has produced no title to which the pos-
session could be ascribed, and in respect the advocator was his
ward during the period to which the alleged possession applies.
Further, that the salmon-fishings ex adverso of the advocator's
lands were not let by the pursuer to his present tenant, whose
possession is alleged to have been interrupted, but were excepted
by the lease, which is dated the 23d October 1824, and ISth
vol. v. a
£40 CASES DECIDED IN THE
' January 1826, and which expressly declares tt\at it to& jpeant
i to include the whole fishings < upon the shore of t^e Jands k*>»
" lopging to the said William Maule/ within the limits fpgci6ed,
c but was ' not meant to include the fishings upon tjie #hpre of
" any lands belonging to auy .other proprietor whatever.' Thai
* while it has not been alleged that the advocator attempted to
c fish upon t^e shpre of the pursuer's lands, so, on the other hand,
' the pursuer's tenant was not entitled by his l^se to fish upon
1 the shore of the advocator's lands. And with respect to the
4 general ^legation in the original petition, ttjat the advocator, or
' those acting for him, did by violence interrupt the pursuer's
' fishing, finds that this allegation Jias not beep ;pwed ;' and
therefore advocated the cause, and assoilzied the defender, * re-
< serving to the pursuer to establish a right to tfce s^Unon-fishings
* ex ad verso of the advocator's lands by decl<ar^tor, fuid to the ad-
' vocator his defences to si^ch action, as accords.'
T^e Court, without hearing the counsel fcf the Evocator, tu*»
apipoiisly adhered.
A. Pearson, W. S.—- Fotheringham and Lindsay, W. S.— Agents.
No, 145. W. F. Walker, Pursuer.— D. qfF. Moncreif—Hamiifon.
Earl of Eglintoun's Tutors, Defenders. — Jameson.
Pjixes^Execution-— Presumption.— -Held, that there -being evidence of a summon*
having been called, it was to be presumed, alter the <Upae of « Jong period of
time, that it fyad been duly executed.
Jan. 26. 1827. In 1770 Major Hay Ferrier as liferenter, and James Ferrier,
1st Division. w"ter to the Signet, as fiar of the superiority of the lands .of
Lord Eldin. Middleton and others, brought an action of declarator and nop*
8- entry against Jean Countess Dowager of Craufurd, as apparent
heir of the late James Montgomery, or of Patrick Montgomery,
the party last vest and seised in the fee of the lands. On the
back of this summons there w,as a jotting, apparently by the mesy
seitger, in these terms :— « Ex. Sixth March. Witts. J. Suthd,
« A.ffmen ; cross, pier, and shore, A. M.' No execution, however,
was written on the summons itself, but on the partibus there wa«
a marking in these terms:— 19tb July 1777. Act. Ilay Camp,
bell— Alt. absent.— To the Regulation Roll, H. C.-~ A. D,
Thereafter Alexander Walker, Writer to the Signet, having
acquired right to the superiority, raised a summons of wakening,
and on the back of the original summpns the following proce,
dure was minuted :— •
COURT OF SESSION. Ml
' 16th January 1808. —Lord A*m ad AL*B.—Cr£hutoM» repeats
c this libel, and also resumes a summons of wakening thereof at
' the instance of Alexander Walker of Middleton, writer in Edio-
c burgh, the now superior, against the right honourable Jean
* Countess of Craufurd, and craves his Lordship to find, de-
* clare, and decern, in terms of the libel at Mr. Walker's in-
' stance/
* Boyle y for the Countess of Craufurd, craves to he allowed to
* see the process, and a few days to prepare defences against the
* action.
< Allows the defender, tb* Cotfntess of Craufurd, to ate the
* process ; ordains her to give in full defences quam primum,
* and parties1 procurators to be ready to debate against next
' calling.9
No further procedure occurred; and Mr. Walker having died,
bis son, the present pursuer, in 1824 raised a summons of waken-
ing and transference against the Earl of Eglintoun and his tu-
tors and curators, as representing the late Countess of Craufurd,
and concluding to have the original summons wakened and trans-
ferred against them. In this summons it was stated that the
original one was called-in Court upon the 19th day of July 1777 ;
but no further proceedings were had therein, owing to a submis-
sion having been entered into by the parties to the late Lord
President Campbell.
In defence it was pleaded, that there was no evidence that
the original summons had ever been executed, or that it had
ever been enrolled ; and as it therefore had never become a de-
pending action, and as more than forty years bad elapsed from
its date, the dam of the pursuer was excluded by prescription.
The Lord Ordinary repelled the defence, ' that the execution
* of the summons sought to be wakened and transferred has not
«- been produced, in respect feat it appears from the writings in
' process that the said summons was executed, called in Court,
' enrolled, and avizandum made with it by the Lord Ordinary.'
Lord Eghntoan and bis .tutors having reclaimed, the Court,
considering the question as one of importance and difficulty,. ap»
pointed the pursuer, before answer, < to give in a condescendence
' explanatory of the practice, at the period in questioay relative to
' the callbtg of summonses before this Court, and whether the
* eseeutkasB, if en separate papers, were required to be produced
c to die clerk along with the summonses at the period of the
* catting ; a* also what evidence exists of the enrolment of the ac-
* tiro.' The pursuer, however, afterwards gave in a note, stating
l taat he fouad'kia*f>ooarhta tpcomply with this order, and praying
34£ CASES DECIDED IN THE
their Lordships to dispense with the condescendence, and to do
otherwise as they thought proper.
The Court then adhered to the Lord Ordinary's interlocutor.
Lord President,— We have evidence from the partihus that the
summons was called, and we must therefore presume, post tantum
temporis, that every thing was rite et solemniter actum, and con-
sequently that the executions either were produced, or ready to he
produced.
The other Judges concurred.
J. Campbell Jun. W. S*— Tod and Hill, W. S— Agents.
P. Borthwick, Suspender. — FuRerton.
Mrs. Ubquhart, Charger. — Sol-Gen. Hope.
Jan. 26. 1827. Husband and Wife.— Bill of suspension passed simpliciter of
, -r — a charge by a married woman, without the concurrence of her
1ST DIVISION. o J - m ▲ L* L ;*, _,„-
Bill-Chamber, husband, and for payment of a sum of money, as to which it was
D. alleged that his jus mariti was excluded.
W. Cook, W. S. Agent
No. 146.
Jan. 26. 1827.
No. 147. MacRitchies and Mcjbbay, W. S. Pursuers-— Sci.-Gen. Hope
— UAmy.
J. Young and Others, Defenders.— Cockburn— Penny.
Proces*— Joint Obligants.— An action which had been brought by an agent of one
of three parties, for repayment from them all of certain advances for which they
were liable, sisted, so far aa the amount of one of the shares was disputed, tUl
the relative proportion of each should be determined in a process of relief pend-
ing between the co-obligants themselves.
In an action at the instance of MacRitchies and Murray, writers
to the signet, agents for the City of Edinburgh, against the Magis-
trates as Governors of Heriot's Hospital, and Young and others,
as trustees and representatives of the partners of Winton and Com-
pany, for payment of certain advances made by them in regard to
an extensive drain executedin certain proportion^ for the mutualad-
vantage of these three parties, the Lord Ordinary pronounced an
interlocutor decerning against Young and others for the proportion
libelled in the summons, without prejudice to any claim of relief
they might have against the City or Heriot's Hospital. Against
this interlocutor Young &c. reclaimed, on the -ground that it
burdened them with a larger proportion than they were truly
liable for; and at the same time they raised an action of relief
2d Division.
Lord Macken-
zie.
OOUHT OF SESSION. 843
against the City and the Hospital. The Court recalled the inter-
locutor of the Lord Ordinary, and remitted to his Lordship to
grant interim decree for the proportion admitted to be due ; but,
quoad ultra, to sist process till the different proportions of the
parties' should be determined in the action of relief.
MacRitchixs, Baylky, and Henderson, W. S«— Morison and
Burnett, W. S*— Agents.
Earl of Elgin and Kincardine, Pursuer. — Sol-Gen. Hope— No. 148.
Thomson— Robertson.
Mrs. Mart Hamilton Nisbet Fergus son and Husband, De-
fenders.— D. qfF. Moncreffi—Fvtterton — Skene.
Bmdmmd and Wife— Divorce.— A party having married the heiress presumptive of
an estate, the entail of which excluded the jus mariti, and having in his contract
of marriage settled certain additional provisions on the children of the marriage,
payable in the event of the succession of her or the heir of the marriage to this.
estate, in which event also an additional tocher stipulated to him was not to be exi-
gible, and having divorced her on the head of adultery, after which the succession
to this estate opened to her— Held, — 1. — That he had no claim to the rents and ad-
ministration of the estate, either by law, or by virtue of the contract of marriage ;
— i— That his claim was not made better by his having raised an action in name
of one of his children, a substitute heir of entail, to set aside the deed excluding
the jus mariti, as in contravention of a prior entail, which, however, contained
an exclusion of the courtesy ; — 3.— That he was not entitled to relief of the ad-
ditional provisions to his children ;— 4.— That he was not entitled to demand
the additional tocher ;— 6\— That no claim of damages lay against his divorced
wife ;— andV-6-— That it was incompetent for him to conclude against her for
aliment to the children of the marriage, who, with the exception of one, had at*
tained majority.
By deed of entail executed in 1701, John Lord Belhaven and Jan. 36. 1827.
Stenton settled his estate of Beil or Belhaven on a certain series 2d Division.
of heirs, under various restrictions and conditions, among which Lord Macken-
were a prohibition to alter the order of succession, or to possess ^^
the lands on any other title than the entail, and a declaration
* that neither the relicts nor husbands' of the male or female heirs
* surviving them shall have right to any terce or courtesy of the
( said lands and others above specified, or any part thereof, but
' shall be altogether hereby excluded therefrom, notwithstanding
( of whatsomever law or practice to the contrair.' In 1765 James
Lord Belhaven, grandson of the entailer, setting forth that, all the
other male substitutes having failed, the estate would on his death
devolve on females, executed a new disposition of entail in favour
of the same series of heirs, and under the same conditions &c. as
nre contained in the deed 1701, with this additional restriction,
it expressly excluded the jus mariti of the husbands of heirs-
g*4 CASES D1GIPSD *N THE
fymie, as well as rtejjr rigfctf owfteay.- Np iafeftfltfriri fallowed
pn this deed ; and upon the dgftth of J*w» Lord Btlbavtm, the
succession opened to Mj?s. Mary Hamilton of Peoeaitland, (widow
of William Nisbet of Diriptotf,) wbo in 1781 executed a third
dteed of entail* whereby tfbe disponed to herself and the heirs in
the previous deeds the estate of Beil or Belhaven, and certain
other lands not contained in the etitafl of 1701, under all the con-
ditions and provisions of the tailzie of 1765, and particularly those
regarding the exclusion of the jus mariti of the husbands of heirs-
female. Mrs. Hamilton completed her titles by charter an4 in*
feftment under the last deed, which, along with that executed in
1765, was duly recorded in the register o{ tailzies. Mrs, Hamil-
ton was succeeded by her son, the late Mr. Hamilton Nisbet, who
made up titles in virtue of the entail 1784, and under this investi-
ture he held the lands in 1799, when the pursuer Lord Elgin 4m-
traeted a marriage with his only child, the defender, then Miss
Mary Nisbet. By the antenuptial contract of marriage entered into
between these parties, Lord Elgin settled on his wife, in the event
ef her eurvivance, an annuity of £1800 a year, to be suspended
by the succession of her, or the issue of the marriage, to the estate
of Belhaven. His Lordship further destined his estate, jrfaich
he held in fee-simple, to the heirs-male of the present marriage,
whom failing, to the heirs*male of any subsequent marriage,
whom failing, to his heirs and assignees whomsoever; and he set-
tled on the younger children i?£000 if one, J&7000 if two, and if
three or more, the sum of i?10,000 ; which provisions were to be
doubled ' in the event of an heir of this marriage succeeding both
' to the aforesaid lands,1 (his Lordship's own estate,) ' and to the
< estate of Belhaven.' On the other hand, Miss Nisbet and her
father conveyed to his Lordship .£10,000 as a marriage portion ;
and Mr. Nisbet bound himself and his heirs to pay a further nun
of j£10,000, which, however, was not to be exigible in the event
of his daughter succeeding at his death to the estate of Bel-
haven. Of this marriage there were born one son and three
daughter*, (all of whom are alive, and three of them major); but
in 1808, on the suit of Lord Elgin, it was dissolved by decree of
divorce on the head of adultery committed by the defender with
Mr.lfergusson, whom she afterwards married, and against whom
his Lordship obtained decree in an action of damages for the earn
of £10,000.
In 1822 Mr. Hamilton Nisbet died without leaving any other
child, and the succession to the estate of Belhaven opened to the
defender, now Mrs. Feigusson, who made up titles as heir to her
father under the entail 1784, and entered into possession of the
COUHT OF SESSION. *4tf
property. £d*tf Elgin then instituted the present action, arid at
the same timtf raised a summons of induction in name of his*
ybUiigestdaUgflter, Lady Lucy Brlice, a minor, as one of the heirs
of entail under the deed 1701, and of himself for his interest, to
hatedte enfcils of 1766 and 1784, and the investitures followhig'
thefSon, set aside, as in contravention of the deed 1701, in so far
as tfiey imposed the restriction regarding the exclusion of the jus
mariti, which was not contained in the original entail; but no pro-
cedure was had in this process, nor was it conjoined with the pre-
sent action, which contained various separate dud alternative- con-
clusions*
Iv The first conclusion was, that, independent of the terms of
the contract of marriage, * the pursuer, notwithstanding of the
* said divorce, has a'gotfd rind undoubted title, jure mariti, to the
' rents of the said lands and estate of Bteil or Belhaven and others,
* and that he'fa entitled to draw the same, and to the adtninistra-
' tioti' of the said estate, in the same way and manner as if the
' said divorce had never taken place, and that from the period of
' Mrs: FergUs&n's succession, during all the days of the joint
* lives' of the pursuer and defender ;' and in support of this- con-
clusion it Was pleaded,
1. By the law of Rome, (on which that of Scotland in relation
to this matter is founded,) the effect of divorce on the head of
adultery Was, thrft the offending party forfeited both the dos and
the donatibnerpropter ntiptias, (Nov. 117. c. & Vbet t. 8: §11.)-
The dbs among the Romans Was' riot equivalent to'the Scottish
tocher, but was that part of the wife's property whichlfell under the
jas mariti, all her other property being strictly paraphernal*; and'
it also formed' her provision at the dissolution of the marriage,
(!>%. de Jute Botium ; 1. Stair, 4: 11.) In the ordinary -case,
thetefttfe, the offending wife only forfeited the dos ; but if she Had
constituted her wliole property as dos, (Which she might do» 11 4.
C. 1. 72. B. de June Dbthitti,) she forfeited her whole estate,
(Hrift; p. & § £9 ; Pothier de his qui sui, &c. art. 4. § S.) By the
law of Scotland, the jus mariti extends over the whole of the wifbY
moveables, and over the rents of her heritage, and' the husband's
right to these stands in4 thie same situation in regard to divorce*
as his right among the Romans to the dos ; that1 is to say, all
these righto Which fall, as the ftomart dos did, under the jtnr
mariti, are forfeited by the' offending wife, (1573, c. 55; 1. Stair,
4 ML)
8. The4 supposed rale, that the consequences* of divorce arfe
the same as if the offending party were naturally dead, ifr fbunded
solely on a modfe of expression, true as to some effects of divorce,
846 CASES DECIDED IN THE
being loosely repeated as to all, while in reality the effects are
totally different, and rest on different principles. By dissolution •
in consequence of death, each party and their representatives
succeed to their respective rights and provisions, and their share
of the goods in communion; while, in the case of dissolution by
divorce, the offending party not only loses all claims consequent
to marriage, but forfeits all rights vested by the marriage in
the innocent spouse, as, in the case of an offending wife, the tocher .
and share of the goods in communion*
3. It being the law that the offending party forfeits all rights
vested by the marriage in the innocent spouse, the question,
comes to be, what is vested- in the husband by the marriage ?
Ail moveables are undoubtedly carried by force of the marriage, .
and would be forfeited by divorce on the head of the wife's adul- ,
tery. Buf the liferent of her landed estates is assigned to the.
husband by the marriage equally with the property of her moveable .
estate. The nature of the right so acquired by the husband,
is not, that it attaches to each year's rents as they become due; but .
it extends to the whole period of his wife's lifetime as an unum >
quid ; and the ipsum jus mariti, so far as regards this right, may.
be adjudged to the complete exclusion of any subsequent dili-
gence or conveyance. This right no doubt falls by the death of
the wife, in the same way as the right to her share of the goods
in communion; but, like that also, it does not fall, but is ne-
cessarily forfeited to the husband upon the divorce of the wife
for adultery ; and so it was found in the old case of L. Inner-
wick, March 1589, (M. 339.) Accordingly, if it, were adjudged
by her husband's creditors, she could not vacate their just and
onerous rights by her own delict ; nor, in like manner, can she
vacate the rights of the husband himself, which are equally
onerous, and possessed in virtue of a contract which he has not
violated, but which has been broken on her part only.
4. This legal assignment of all moveables belonging to the wife,
and of the liferent of her heritage, is not confined to rights falling
to her during the marriage, but extends to property to which she
succeeds after its dissolution. Thus it has been found that legacies
to a wife, not payable till her husband's decease, go to his executors*
as falling under his jus mariti, (Nicolson, June 16. 1627, M. 5798;
Lady Pulteney, Dec. 18. 1807,) as does a sum assigned to the wife*
but not intimated till after the husband's* death, (Scott, Jan. 29.
1 663, M. 5799) ; and even as to a contingent debt, th$ condition at-
taching to which does not exist till the dissolution of the marriage,
it is at least a doubtful matter whether it also does not fall under
the jus mariti, (Dirleton, voce Jus Mariti.) Such being the
COURT OF SESSION. 847
even where the dissolution happens by death, it must much more
clearly be so where the dissolution happens by divorce ; for the
party can never by her delict deprive her husband of rights which
he would have enjoyed, notwithstanding her natural death ; nor
can she gain to herself an advantage by this breach of the contract,
so aa to acquire rights, or deprive her husband of rights which-
he must have enjoyed, had the contract not been violated on
her part, and necessarily dissolved by her delict, prior to her.
succession to such rights as her husband must and would have en-
joyed jure mariti, had the marriage not been so dissolved. But
further, the right in the defender to the estate of Belhaven, though
a future right, and perhaps to a certain extent a contingent right,
was yet a right absolutely vested in her person as heir of entail at
the date of the marriage; and although the succession did not
open until after the dissolution of the marriage, it did open during
her life, and therefore in such time as would have brought it
under the jus mariti of her husband, had the marriage not been-
dissolved by her delict; and as she could not, by a culpable
breach of contract, gain to herself, or take away from her hus-
band, a right which she would not have acquired by a strict per-
formance of the contract, she consequently cannot, on any prin-
ciple of law or equity, claim the exclusive possession of the rents
of an estate which she would not have been entitled to possess,
had d*e faithfully performed her part of the contract, and not
violated it by a delict.
5. The circumstance of the exclusion of the courtesy in the en-
tail of 1701 of the estate of Belhaven cannot affect this claim, as
it is not rested on courtesy, but on the jus mariti, which the de-
fender could not defeat, to her husband's prejudice and her own
advantage, by her delict and culpable breach of the contract ;
and besides, courtesy in the ordinary sense has reference only
to the case of the wife's death, and an exclusion of it cannot
affect a right of enjoyment before that event has happened, the
more especially in the present case, as the clause in the entail ex-
pressly mentions the event of the survivance of the husband.
6. The exclusion of the jus mariti in the entails of 1765 and
1784 might no doubt have been a complete bar to the pursuer's,
claim, had it not been that the insertion of this additional re-
striction was ultra vires of the makers of these entails, as being
in contravention of the prior deed of 1701, in virtue, of which
they held the estate, and that an action of reduction of these
deeds had been raised at the instance of one of the substitute heirs
under the deed 1701.
II. The second conclusion of the pursuer's summons was, that
£48 CASES $>$Gltm& iti >PHE
» •
« in cas* it shall be held that the legal consequence of the said dT-
€ Voree isf to exclude his jus mariti over the rents of the said lands
« and estate, and right of administration- thereof, during the joint
* lives of the parties,* it should still be declared that his ekita
was well founded, m respect of the speetal* provisions in the eon*--
tract of marriage, and this on the gtotfnd that the obligations
come under to settle his fee-simple estate on the heir-male of the1
marriage, and to double the provisions of the younger children hr
the event of the succession to Belhaven openirig to hi* *ife, were
undertaken by him in consideration of his* wife's expected success
mat to that estate, and in contemplation of drawing the rents as
a fund for enabling him to make these provisions in< favour of die
children of the marriage, and therefore that the defender could
not by hfcr delict deprive the pursuer of the ctarefous considera-
tion in respect of which he came under these obligations;
III. The summons, m the third plade, concluded, that in the
4vetit of the pursuer foiling in the two previous conclusions, the
defender should be found liable to relieve him of the obligations
£6 come under by him in consideration of his wife's expected suc-
cession to the estate of Belhaven, and also to mate payment to
him of £ 10,000 * as a solatium, and in name of damages, arising-
' from the consequences of the said decree of divorce, and for the
4 loss suffered by the pursuer in consequence of the effect of the
1 said decree upon his right to the said rents, either jure mariti,
* or under the said contract of marriage, or in any other way.1
IV. A fourth conclusion related to the additional tocher of
,£10,000 stipulated by Mr. Hamilton Nisbet in the contract of
marriage, but under ffhe declaration that it should1 not be exigible,
c if the said Mary Nisbet, or her issue fey the present marriage,
c shall, at the death of the said William Hamilton Nisbet, succeed
< to the estate of Belhaven, as heir of the investiture thereof;* mod
its purpose was to have it declared, in the event of the pursuer's
claim for the rents being repelled, that the defender was bound
to make payment of this sum, in respect that * in consequence of
* the said divorce, arising from her delinquency, the pursuer dbes
6 not draw the advantages arising from her said succession, in
* consideration whereof the said sum* of i?10,000 was, in that
•* special event, declared in the said contract of marriage not to be
* exigible.'
V. The fifth and last conclusion was, to have it found that the
defender ' is bound to contribute out of the Tents of the said estate
* of Beil or Belhaven, in case it should be found that the pursuer
( has no right thereto, or out of her own other funds, or out of
* both die said rents and funds, a proportional part of the expense
COURT OF SESSION. 94t)
<4f maintaining and supporting the children procreated of the
* raarri^e contracted betwixt tier and the said pursuer, suitable
* to their rank, station, and prospects.'
The Lord Ordinary* on advising mutual memorials, found
* that sufficient grounds are not stated to support any of the con-
' elusions of the libel/ and therefore assoilzied the defenders sin*.
pliciter. The Court unanimously adhered.
lo&n Pith juy<~ Although the daws on tie part of thnpnnmar ant
•urged in a paper of vary gmet length, otir opinions maybe delirered
*t»y shortly, I had net proceeded very far » tba paranal of the
»»otnori»i,whenloap*tob««fth»
xmif. As to the feat tniranlueiojn, it h> altogether groundless, even if
the jut inartti wars not excluded by the title* I cannot conceive
horn he couM posses* any ju* mariti alter ike dissolution of the.mar-
rnu^aslmwimjd thus bate right to toe liferent of the heritage on
fens iooooeistant aTeuads~courteey aad jus mariti. But at all
events il is cut off by the existing investitures, which exclude the
joe iaariti As to the reductiea, it is enough to say that a isduc-
laan ie necessary; and until the titles be reduced, they must exclude
the jas mnritL The second conclusion snmiaes that the pursuer be-
came* bound lor the provisions, on the faith of getting the rents of
BeDtflwea* The answer to that, however, is quite invincible. The
contract never could contemplate this as the onerous cause of the
ptovwione, as the jus marhi was excluded; and besides, it is not the
event of the lady, but of the heir of the marriage succeeding, which
is the condition of the increased prorations. The conclusion for
damages is just another shape for the same claim, and the same an-
swer applies, as it does also to the fourth conclusion. The last con-'
elusion for aliment cannot possibly he sustained in an action where
the children, being major, are not parties, and do not require aliment.
Loan Aixowat^— I am entirely of the same opinion. As to the first con-
chnion, I cannot conceive on what it is founded. The jus mariti rests
oa the subsistence of the marriage ; and bow is it possible that it
can be exerted after its dissolution, and. over a subject which the
lady did not succeed to for fifteen years after the marriage bad been
dissolved by the husband s voluntary act ? If, however, there could
be any doubt on the general point, it would be completely removed
by the specialty, that at the date of the marriage the estate stood on
an investiture excluding the jus mariti ; — and will the mere raising
an action of reduction have the same effect as if decree had been ob-
tained in it ? The title to pursue is not yet sustained ; and I should
conceive it to be a very difficult matter to make out any interest in
Lady Lucy Bruce to set aside an entail which gives her a right to
succeed to considerable estates not contained in the original entail,
sad to which she would have no right otherwise. The conclusion
for damages is still less capable of being supported. The exclusion
S50 CASES DECIDED IN THE
of the jus mariti removes every foundation for it ; add besides, the
pursuer brought himself into his present situation by his own act and
deed in pursuing a divorce. On the other points I entirely concur
with Lord Pitmilly.
Lord Justice-Clerk. — In this unusual and unparalleled case, I
confess my difficulty was more in the perusal of the papers than in
forming an opinion. I lay out of view altogether the action of re-
duction, and consider the case as under the existing investitures,
and I am* satisfied that there are no grounds on which to rest any
of the conclusions of this summons. As to the claim on the jus
mariti for the rents of lands not succeeded* to until long after the
dissolution of the marriage, I conceive it to be a contradiction to
found on the jus mariti after dissolution of the marriage ; but at all
events, if there were any doubt on the general argument, it is en-
tirely precluded by the exclusion of the jus mariti in the existing in-
vestitures. In regard to the second conclusion, I can find nothing
in the contract giving such a right as here claimed over the estate,
which was then under investitures excluding it. The third conclu-
sion is for damages in consequence of the divorce. I never beard of
such a claim, further than the penal consequences which have already
followed. The fourth is just a claim of damages under another shape ;
and as to the fifth, for aliment to the children, although it may at
first sight appear more plausible than the others, it is equally unten-
able when we attend to this, that it is insisted in by the father of
children all major but one, who is also near majority, and not in
name of the children. It is just in the same situation as an action
by an entire stranger, and there are no grounds for sustaining it.
Pursuer's Authorities.— L— {1. and 2.)— Novell. 117, c. 8 ; Voet. 48. 1. 6. f 1 1 ;
] . Stair, 4. 20. § 1 1 ; 1. 4. C. and 1. 72. D. de Jure Dotium ; Hein. p. 4.§ £9 ; Po.
thier, Art. 4. § 3, de his qui sui, &c. ; Grsneiwegan de Leg. Abrog. Art. Nov.
117; Christinssus ad Leg. Mechlin, t. 2. Art. 13. Ad. 6 ; 2. Craig, 22. 35 ;
]. Erik. 6. 46 ; Auchinleck, Dec. 18. 1540, (339) $ L. Innerwick, Inarch 1589,
(329); Countess of Argyll, Dec. 19. 1573, (327) ; Murray, June 16. 1575, (328);
Lady Baquhanan, May 16. 1579, (329) ; 1573, c. 55.—(4.)— Nicolson, June 16".
1627, (5798); Scott, Jan. 29. 1663, (5799); Lady Pulteney, Dec. 18. H»7,
(F. C); Corrie, Feb. 27- 1765, (5772); Fotheringham, Feb. 7. 1695, (5764);
Dirleton, voce Jus Mariti.— (60— Dundas, Nov. 29. 1774, (15430); Menxiea,
June 22. 1785, (15436.)
Defenders' Authorities.— \. Stair, 4. 22; 4. Wallace's Pr. 15. 287 ; Lady Mander-
stoun, March 21. 1637, (1741) ; Anderson, Feb. 8. 1734, (333); Justice, Jan. 13.
1761, (334) ; Wedderburn's Trustees, Jan. 29. 1789, (10426.)
x J. A. Cheyne, W. S. — J. Dundas, W. S*— Agents.
- COURT OF SESSION. 251
D. Munro, Suspender. — D. Macfarlane. No. 149*
Mrs. E. M'Neill. — Robertson.
The Court adhered to an interlocutor of the Lord Ordinary J«n. 27. 1887.
refusing a bill of suspension of a charge on decree by a widow 2d Division.
against her deceased husband's trustees, for payment of an an- Bill-Chamber,
nuity left her by her husband. **** AUoway.
J. Dtolop, W. S. — J. Bkown, — Agents.
A. Farquh arson, Pursuer.— D. qfF. Moncreiff— Skene— ^ °- 150-
Innes.
Miss Baestow, Defender.— Cockburn—Cuninghame.
Usury— Personal Objection,— 1.— A party held barred from objecting to a deed as
illegal on the bead of vuurf ;— and,-— 2. — A sale of Government stock of the
value of j£7G20 for an heritable bond of .£10,000, and interest thereon at five
per cent., and of which the principal sum was to be payable only on certain
contingencies, held not usurious.
»
III 1797 the defender Miss Barstow came tb reside with the Jan. 31. 1827.
late Francis Russell, Esq. of Blackball, (of whose wife she was a in- Division.
cousin,) and continued to form one of the family during his life, Lord Medwyn*
paying a board, and contributing to the expenses of part of D*
the domestic establishment, and occasionally giving Mr. Russell
the use of her funds. She was possessed of i?l£,000, S per cent,
consols; and early in the year 1808 she agreed to transfer that
stock to Mr. Russell, in consideration of receiving from him an
heritable bond for £10,000 sterling, with interest on that sum
at 5 per cent. ; but declaring that she should not be entitled to
exact payment of the principal sum until the 8 per cent, consols
had been purchased by the broker for redemption of the na-
tional debt to the extent of one million in the course of a year.
At tins time the value of the £12,000 of stock was £7620,
the selling price being 63£* This agreement was explained in
mutual letters, dated the 16th of March 1808, of which that
from Mr. Russell was in these terms :—
' If I am ever to complete our stock bargain, it shall be now.
' I induced you to embark in that business. I am able, and I
* am willing, to abide the consequences, and I do not fear them
' in the least ; so now or never.
' I think the following are the articles hitherto agreed between
* us:—
4 1st, On your part, you are to assign over to me, in full right
' for ever, your right and interest in £12,000, 8 per cent con-
252
cases Decided, ks the
solidated Government annuities, with the dividend accruing due
thereon in July next, 180$ years, as part of the same.
' 2dly, On my part, I am bound to give you, and your heirs
or executors, ample mortgage security for the sum of £1 0,000
sterling money of Great Britain, as on the 20th day of June
next, 1803 years, with interest from and after that day and term,
during the whole period I shall be due the said sum of money,
at the rate of 5 per cent, per annum, payable half yearly, every
20th day of December and 20th day of June, for the half year
respectively preceding; beginning the first half yearly and
termly payment upon the 20th day of December next, 1803
years, for the half year immediately preceding, and so on half
yearly, paying to you £250 sterling every half year while I
remain debtor in the said principal sum of i?10,000 sterling.
* Sdly, That, during your life, I shall, at your pleasure, be
bound to hold the said sujrn of money, and to pay you interest
therefor at the rate of 5 par centum yearly, and payable as
above half yearly in equal portions, and that unless the interest
of money shall be reduced by law to a lower rate.
' 4thly, That it shall not, however, be lawful for you to de-
mand or exact payment of the said principal suei from me or
mine until two years after it shall be signified to me by a wjife.
ing under your own or your agent's hand, thpt lbs aaid £ per
centum consolidated Government annuities are currently sold
at the Stock Exchange in London to the broker for purchasing
up the national debt, or other public character, in sums exceed*
ing in the course of a year one million of said stock* at the rate
of d£83. 10s. sterling for each ^100 of said 3 per eaau caatoti*
dated annuities ; but that, in si* months after I Juwe reepared
said notice, it shall be lawful for you, at any time. during the
whole course of your life, to demand, and I shall be hound to
pay up, the whole of said principal sypi,
* 5thly, But that it is fully agreed a&d settled between 0%
in the event of the said principal sujjl remaiiwpg dtj* *t the tiae
of your decease, or of mine, that no greater ptrt of said prinei*
pal sum than JP2000 sterling shall be payable or demanded in
a shorter period than two years thereafter ; and thai the re-
plaining i?8000 shall, be payable in two equal instalments of
.£4000 each at die periods, the first of four years from audr
event, and the last at six years from such event ; and that it
shall not be in the power of either your heirs or exesutocs or
successors to demand payment in any shorter or other terms-
or portions.
' Gthjy, That in the efsp and event of y cuar marriage, I shall, •
COURT OF SESSION. SS3
' in one month thereafter, be bound to pay you -£8000 sterling,
' provided the S per cents, have readied but 75 .per centum ; and
' that at all times, on forty days smtfce, I shall be bound to pay
( you, for any want or purpose pf yours, ^1000 sterling, on
( either of such payments being properly discharged, in part of
' my bond and mortgage in your favour.7
On the &lst of the sane month, Mias Baratow wrote an an,
swer, introducing tfc condition? of the above letter, and then
stated, that * I have only to declare that the above-written arti-
' clea of an agreement are entirely agreeable and in conformity
* to what has been settled between us ; and I hereby oblige my-
' sejf to execute what is incumbent on me, in consequence pf this
' agreement, by assigning the <£12,0QQ 8 per centum consols in
' your favour, at foon as a proper security can be made out and
' executed by ypu in my favour, in the terms of your letter above
' referred to. And as the said 8 per cent, stock does not at this
4 time sell above 68£ per cent, I cannot but consider this trans-
' action as muoh to my advantage; and therefore in case, at the
' period of njy decease, the said bond shall remain unpaid, it is
* my desire and request that thereafter, until it shall sell so as
' thaj. the said £l%fM) shall yield the sum of -£10,000 sterling,
g that it shall remain in your hands at the rate of 3$ per centum
* until that price can be obtained.'
In consequence of this arrangement, Mr. Russell (who had
JieeB educated as a lawyer, and bad passed advocate) drew out
an heritable bond, which he himself extended and executed in
due fopp, and obtained a transfer to the stock, without the inter-
vention of agents on either side. This bond was precisely in
terms of the above missive, with the exception that the obligation
to repay was thus expressed :— ' Therefore I hereby bind and
' oblige myself &c, to content and repay to the said Miss Frances
< B^rstow, or to the executors and trustees now appointed or to
' be appointed by her for carrying into execution the disposal of
t her property and effects at her decease, either by her last will or
* settlement now actually made, or by any latter will or settle*.
* ment which she may at any future period of her life think fit to
' gB^ke, expressly barring and secluding all other heirs and all
* other executors, the said sum of .£10,000 money aforesaid.9
In place alao pf Mr. Russell being absolutely obliged to pay
JX3QQO on her marriage, if the 3 per cent consols should then
reach 76 per cent., he bound himself under this qualification :-^-
< The sum of £0000 sterling to be credited to me, however, in
< the payment of the sw$s contained in this bond, at the rate at
< vfriei* tte 3 psr cent, oanaoje shall then sell; that is, allow*
854 CASES DECIDED IN THE
* ing in my favour whatever they then sell for belojr rf 8S. 10s.
« for jPIOO stock.'
The bond was delivered to Miss Barstow, but.no infeftmeut
was taken upon it till after the death of Mr. Russell, which oc-
curred in October 1806. That gentleman conveyed his estates
to his wife as sole trustee, who was empowered, after paying his
<debts, to divide them between his two daughters, who were his
only children. One of these daughters was married to the pur-
suer Mr. Farquharson, who acquired right to that part of the
estate over which the bond extended. He continued to pay to
Miss Barstow the interest, in terms of the agreement, till March
1824s and during the greater part of the intervening period, (at
least till the year 1817 or 1818,) the 8 per cent, consols never
reached 83£, but more recently they exceeded that price. He then
brought an actipn of reduction of the transaction, on the ground,
1. That it was usurious ; because, as the sum actually advanced
and lent was only <f7620, in consideration of which a bond was
granted for «£ 10,000 at five per cent., so that instead of drawing
the legal interest of .£381 on the sum truly lent, she was entitled
to £500 per annum, whereby she drew <£119 more than she was
entitled to ; and because the repayment of the principal sum was
absolutely secured to her ; or at least, if there was any contingency
whatsoever, it was merely colourable ; and,
2. That the transaction was contrary to the 7th Geo. IT. § 1,
, by which it is enacted, that ' all contracts and agreements whatso-
'ever which shall, from and after the 1st of June 1734, be made
'or entered into by or between any person or persons, upon
' which any premium shall be given or paid for liberty to put
* upon, or to deliver, receive, accept, or refuse any public or joint
' stock, or other public securities whatsoever, or any part, share,
' or interest therein, and also all wagers, and contracts in the na-
' ture of wagers, and all contracts in the nature of puts and re*
' fusals relating to the then present or future price or value of
( any such stock or securities as aforesaid, shall be null and void
c to all purposes whatsoever.7
On the other hand, it was pleaded in defence by Miss Barstow 9
1. That as the property over which the bond extended had!
been conveyed to the pursuer, subject to the condition of the pay-
ment of the debt, he. was not entitled to insist in this action.
2. That in the peculiar circumstances in which she stood ir*.
relation to Mr. Russell at the date of the transaction, and having
placed unlimited confidence in him, and relied entirely upon bis
constituting a legal and effectual obligation against himself, it:
would not have been competent for him to have maintained t^^
COURT OF SESSION. 255
illegality of the transaction, or to set it aside on- the allegation of
its being usurious ; and as the pursuer represented Mr. Russell,
he was barred from insisting in the conclusions of the action.
8. That the transaction was not of the nature of an ordinary
loan of money, but was the sale of a subject which was of a fluc-
tuating nature in pointof value, for a.price payable only if the stocks
reached 8S| per cent., and for an annuity if they did not reach
that price, whereby there were contingencies giving each party
their chance of gain or loss ; that, accordingly, if stocks had im-
mediately risen to their present selling price, the interest payable
would have been greatly less than five per cent., whereas, if they
had fallen, it might have been larger ; so that it was impossible
to say that this was an ordinary loan at more than five per cent ;
and.
4. That the statute of Geo. II. had reference to sales where the
party had no stock, and was made with a view to prevent gam-
bling on the Stock ^Exchange, and not to apply to such transac-
tions as the present one.
The Court, on the report of the Lord Ordinary, sustained the
pursuer's title, but assoilzied the defender, with expenses.
Lord Balgray. — There are two pleas in defence which appear to
me to be quite insuperable. The first is of the nature of a personal
objection. This lady was a member of Mr. Russell's family, and
she intrusted to bim the entire management of her affairs. In carry-
ing this transaction into execution, she placed the utmost confidence
in him. He was the framer of the whole plan, and actually wrote
and extended the deed with bis own band. I apprehend, therefore,
that Mr. Russell was bound to warrant the validity of that deed,
and that there was nothing illegal in it. x But if. Mr. Russell could
not challenge it, I apprehend that the pursuer stands in the same
situation. In the second place, there is nothing usurious on the face
of die bond ; and even on going back to the letter of the 16th of
March, on which the case in mainly rested, it is plain that the trans-
action was of a nature to which it is impossible to apply the laws of
usury. It was, in truth, the purchase of an estate of a peculiar de-
scription, and which fluctuated in value from day to day. Besides,
there are some singular obligations in relation to the repayment of
the money, which would probably have had the effect to defeat
the payment altogether ; and, at all events, the payment was not to
be made till stocks rose to 8S£, which, at the date of this transac-
tion, no human being could have contemplated as possible. It was
altogether a transaction sui generis, to which the objection of usury
cannot apply.
Loan Gillies. — I concur in every word which has been said by Lord
Balgray.
VOL. V. B
266 CASES DECIDED IN THE
Lord Presidents— I am also of the eane opinion ; and I should wish
to ask, if at nrarh had been gained as is said to have bee* lost by
tbis transaction, we could hare bad any legal grounds for sotting it
aside at the instance of the defender? I certainly think not
Lord Craigie concurred.
Pursuer's Authorities*—*. Ersk. 4. 76; Comyn on Usury, 33. 114. 156, and
Cases there ; Colville, Jan. 26. 1709, (6825,)
Defender's Authorities.— 3. Wilson's Reports, 390 ; Atkinson, 340 ; Comyn, 22 ;
Cro. Eiix. 1741 ; Atk. 301 ; Ambl. 371 ; 5. Esp. 164 ; Robertson's Ap. Ca. 471.
T. Innes, W. S—- P. Irvine, W. S — Agents.
«
No. 151. W. Maule, l^rsuer^^Forst/th— Robertson,
Hon. W. Maule, Defender.—!), of F. MoMmff—Kamf—
Murray— G. Craig.
Process— Redvction^-ln a redaction of a decree in fbro relative to the right to an
, estate, and the titles thereof ■■ Held that the defender may prodaoe the decree, and
thereupon found on it as res judicata, and refuse to produce the titles till the
decree is set aside.
Jan. 31. 1827. In 1782 Lieutenant Maule, the father of the pursuer, brought
1st Division. an act^on °f reduction of the titles of the estate of Panmure, un-
Lord Newton, der which the defender now possesses it, and in which decree of
D. absolvitor was pronounced. Before the interlocutor was final,
and with a view to avoid mutual appeals, the^parties eutered into
an agreement in the form of a submission, which was subsequently
found by the House oi Lords not to be effectual ; but at the same
time it was declared, that ' this was without prejudice as to any
* question between the parties in any other action touching any
* properly comprised in the deeds of tailzie in the pleadings men-
4 boned.1 The pursuer, as the representative of his father, then
brought an action of reduction of the title*, against which the
Court sustained a defence of res judicata, founded on the decree
of 1782. (See ante, Vol. III. No. 62.) But, on appeal, the House
of Lords pronounced this judgment, in so far as regarded the
property of the estate : * — * That the interlocutors complained of
* in the said appeal be, and the same are hereby affirmed with
* respect to the estates of Kelly and Ballumbie, and the bond for
* ,£9000 in the said interlocutors mentioned, so far as the said in-
' terlocutors find that all right and interest in the said estates arid
' bond, which the appellant claimed under the summons of reduc-
* tion and declarator in the said interlocutors mentioned, were
< totally excluded, and the subject-matter of the action then be-
' fore the Court as to such estates and bond was res judicata by
* the judgment contained in the decreet of the Court of Session
• See Wilson and Shaw's Appeal Cases, May 26. 1826, p. 451.
COURT OP SES6ION. S57
( of the Sik of March 1788 in the said interlocutors mentioned,
* in as muoh as it appears to their Lordships that it was not com-
( petefit to the appellant, by the summons of reduction and de-
< clarator in the said interlocutors mentioned, to impeach such
1 decreet of the 5th of March 1782, so far as the same respected
1 such estates and bond, and such decreet has not been impeached
' by reclaiming petition or appeal, or any other proceeding com-
1 pelent to impeach the same/ After certain other findings in re-
lation to a claim to certain leases, it was further found in explana-
tion of the judgment containing the above reservation, ( the in-
1 tent and meaning of the whole of such judgment being to leave
' all questions respecting the right to the said leases, as well as to
' the rest of the property comprised in the deeds of tailzie therein
< mentioned, open to be discussed in such manner as the same
* might be properly discussed in any future proceeding properly
4 instituted for that purpose.'
The pursuer then brought an action of reduction, in which he
called for exhibition and production both of the decree of 1782
and of the title-deeds of the estate, and concluded for reduction
of them on various grounds. The defender produced the decree,
but declined to satisfy the production by producing the titles of
the estate ; in support of which he maintained, That so long as
the decree was unreduced, he was entitled to found upon it as a
res judicata, to the effect at least of withholding exhibition of the
titles ; and therefore that the pursuer must proceed, in the first
place, to have the decree set aside.
To this it was answered, That both in terms of the judgment
of the House of Lords, finding that the pursuer was entitled to
be beard as to the validity of the titles, provided he impeached
the decree in due form, and as he bad done so ; and also in terms
of the Judicature Act, by which it was requisite to make up a
single record, the defender was bound to satisfy the production,
so that the whole cause might be prepared at once.
Tbe Lord Ordinary found, * That in order to satisfy the pro-
c duction, it is not sufficient for the defenders to produce the de-
< cree of the Court of Session of 1st March 1782, as excluding,
' while unreduced, the pursuer's title to call for the other writs
' nodear reduction ;' and therefore repelled the preliminary de-
fence to the production of the said writs, and at the same time
stated bis opinion in the following note :— « The Lord Ordinary
* is quite aware that the pursuer must succeed in reducing the
* deeree, before he can be heard to challenge the other deeds called
( for ; but the necessity of following this order does not appear
< to justify the defender's refusal to satisfy the production by pro*
268 CASES DECIDED IN THE
* ducing the. whole. In actions of this nature, where a series of
« titles are challenged, the validity of the later ones generally, de-
' pends upon that of the earlier ; but the defender is not on this
' account allowed to content himself at first with producing a part.
( The case of Irvine of Drum against the Earl of Aberdeen, as
' decided in the House of Lords 2d April 1770, founded on by
' the pursuer, seems very much in point. Besides, the form of
* proceeding contended for by the defender seems inconsistent
' with that required by the act 6th Geo. IV. c. 120, as it would
* be necessary to receive peremptory defences, and to make up
* and close the record, in order to dispose of the decree 1782 ;
' while, in the event of this being reduced, a further pet of de-
' fences would need to be given in, and a second record to be
' made up, in reference to the other deeds. Now, although, from
* the peculiar nature of actions. of reduction, dilatory defences
c may be lodged and considered separately, there is no reason
* why the whole peremptory defences should not be stated at
' once, in terms of the 2d section of the act.'
The defender then reclaimed, and prayed tohave it found that he
was not bound ) to produce any of the titles called for in the
' summons until the decree of 1st March 1782 is actually reduced,
' and to remit to the Lord Ordinary to proceed in that branch of
* the summons, by ordaining the pursuer to lodge a condescend-
4 ejice of his reasons of reduction.9
The Court (without hearing the defender in reply) altered, and
remitted to the Lord Ordinary ' to hear parties upon the reasons
< of reduction, and the defences arising out of the production of
' the decree of the 5th of March 1782, and to proceed farther as
< to his Lordship shall seem proper ; but sist process in the mean
' time, relative to the production of the writings called for, other
' than the said decree already produced, and until the reduction
' of the same.9
Loan President. — It is perfectly plain that if the pursuer cannot
succeed in reducing the decree, it will have the effect of res judicata ;
and therefore the process ought to be sisted quoad ultra, and the
validity of the decree first be discussed. In the case of Irvine of
Drum, the decree founded on was a decree of sale, which was it-
self one of the titles, so that that case has no application to the pre*.
sent one.
Lord Craigie. — The decree is not properly a title to exclude. It
affords a plea of res judicata, and as such is sufficient to exclude the
necessity of producing the titles to the estate until it be reduced.
Loans Balgray and Gillies concurred.
D. Fisher,— Fotheringham and Lindsay, W. S— Agents.
J
COURT OP SESSION. 259
j J. Crawford, Pursuer. — Cuningtiame. No. 152«
J. Walker, Defender. — Greenshields.
J. Russell, Defender. — Wilson.
Sale — Acquiescence.— -Heritable subjects burdened with debt, having been exposed
to sale under articles of roup, on the narrative that they were consented to by
the creditor, and on the condition that, before payment of the price, an assigna-
tion to the debt was to be granted ; but not being signed by him, and the pur-
chaser having paid the price to the exposer without obtaining an assignation —
Held, that although the creditor attended and offered at the sale, the debt still
remained a burden on the property.
The late David Black, as trustee on the sequestrated estates of Jan. 31. 1827.
Auld and Meiklejohu, exposed to public sale in lots certain herit- i8T*di7isioh.
able subjects belonging to the bankrupts. Over these the de- Lord Eldin.
fender James Walker held two heritable bonds, the one for <£150 lL
and the other for £50, and Black himself held another bond in
his private capacity for •P400. In the articles of roup it was
stated that the sale was made with the consent of James Walker,
and it was provided that the price should be payable to Black,
and that * upon the purchaser making payment of the price, or
granting security as aforesaid, the said David Black, as trustee
foresaid, shall be bound and obliged, as he hereby binds and
obliges himself, to purge the said subjects of all encumbrances
affecting the same, excepting the heritable debts before specified,
which are to be assigned to and in favour of the purchaser, as
before mentioned, and to deliver a formal and valid disposition
of the shares of the aforesaid subjects which belonged to the
said Jabez Auld and Andrew Meiklejohn, to the purchaser and
his heirs and assignees, containing procuratory of resignation,
assignation to the writs and evidents, and to the rents, mails,
and duties, and all other usual and necessary clauses ; and farther,
to deliver to the said purchaser or purchasers valid dispositions
and assignations by himself and the said James Walker of the
debts before specified, in so far as the same affect the subjects
respectively, and proportionally to the several prices aforesaid ;
together with the said heritable bonds themselves, and infeft-
ments following thereon.*
The articles of roup, however, were not signed by Walker; but
they were read in his presence at the sale, where he attended to
bid for a friend, which he did, and was preferred to one lot ' upon
4 the conditions mentioned in the articles ;' and he signed a minute
to that effect. Another lot having been purchased by the pur-
suer Crawford at £ 490, he paid to Black ,£450, but did not
obtain from him any disposition of the property, or any assigna-
260 CASES DECIDED IN THE
tion from Walker of his heritable debts. Thereafter Black died
bankrupt; and Crawford brought an action of adjudication in
implement against Russell, (who bad been appointed trustee in
place of Black,) and also against Walker, for the purpose of having
the property and debts conveyed to him.
In support of this action he contended, That although the ar-
ticles of sale bad not been subscribed by Walker, yet they bad been
read in his presence; and as he had offered for and been preferred
lo one of the lots, and as he had signed a minute in relation to them,
he was bound by them ; and therefore, as it was a condition of
them that the debts should be assigned to the purchaser, and as
the pursuer, on that faith, had paid the price to Black, be was
entitled to have the debts conveyed to him*
In defence Walker stated, That he had not given any consent
to the statement contained in the articles of roup, and that as he
was merely bidding for a friend, he did not pay particular atten-
tion to them ; but at all events, as it was a condition of ihem, that
before payment of the price, the purchaser was to receive an as-
signation to the debts, he was not entitled to pay the price until
that assignation was granted, and therefore the debts must re*
main effectual against the property.
' By Russell it was stated, That he was willing to convey the pro-
perty so far as the bankrupts were concerned, but that he had no
power to assign or discharge the heritable debts. The Lord Or-
dinary repelled the defences for both parties, but the Court unani-
mously altered, and assoilzied both defenders.
Loan President.— There is an express stipulation that the purchaser
was to receive aa assignation to the debts before paying the price ;
and therefore, if the pursuer chose to pay the amount to Black with-
out receiving an assignation from Walker, he has himself alone to
blame.
Lord Gillies. — Even if Walker had read and signed the articles of
roup, be was entitled to consider himself safe, because it was ex-
pressly stipulated that, before doing so, Black was ' to deliver to the
4 said purchaser or purchasers valid dispositions and assignations by
' himself and the said James Walker of the debts before specified/
The other Judges concurred.
J- Malcolm,— D. Wilson, W. SU-J, Johnston Jim— Agent*.
COURT Off SESSION. «6i
P. Hodge, Suspender*— A. JiTNelU. No. 153.
W. Wedmkspoon, Charger.— Jameson.
Bill of Exchange. — This was a question between the trustee Jan. 31. 1827.
of the drawer and the acceptor of a bill, which, it was alleged, "T
formed one of a series of transactions, and which had been ex- j^ Eidin."
tinguished to a large extent The Lord Ordinary having repelled s.
the reasons of suspension, the Court recalled the interlocutor,
and remitted to him to send the case to an accountant.
W. Glove*, W. &—W. Murray, W. &— Agents.
J. Robebtson and Others, Pursuers. — FuUerton—Cuninghame. No. 134.
Beu's Trustees, Defenders. — Skene — Brown.
This was an action for implement of certain obligations under «T*n. 31. 1827.
a feu-contract, as having been entered into jointly by the late 2d Division.
John Bell and one Boyd, through the intervention of M'Kerlie. Lord Macken-
The defence was, that the parties were not joint feuars, but that *£ '
each was feuar of the one half. The Lord Ordinary found, « that
' there is sufficient evidence that the contract of feu by Alexander
' MTKerlie was made by the said Alexander M'Kerlie, acting
* for behoof of John Bell and Robert Boyd, and therefore that
' the said John Bell and Robert Boyd were bound, conjunctly and
* severally, to implement that contract;9 and the Court adhered.
T. ftTKMZiB, W. &— W. Baxxantyne, W. S^-Ageats.
R. Allan, Pursuer. — D. cfF. Moncreffi—Jfore. No. 155.
H. Swan and Others, Defenders. — Cockburn — R. BcU.
Itwtrgk-* Acquiescence. •*-& singular snceessor to a property in a town is not en-
titled to insist on the removal of a well erected in front of it by the Magistrate!
for the public convenience, except in so far as it encroaches on his private pro*
r, it having stood without objection for 35 years.
In 1788, the Stentmasters or Magistrates of Kelso, (which is a Jan. 31. 1827.
Burgh of Barony,) with the view of dividing more conveniently 2d d,v1SI0H.
the distance between the public wells, removed one from its former Lord Macken-
ntuation, and, with the concurrence of the Duke of Roxburghe, 2»c-
the proprietor of the butcher market, they fixed it in the wall of
the market fronting Roxburghe street, one of the principal streets
of the burgh. This well consisted merely of a pipe taken up
through the wall, and projecting from it with a stop-cock. In this
situation itstemained unchallenged for 35 years ; but Allan, the
262 CASES DECIDED IN THE
pursuer, having purchased the market-place, raised an action
against the Stentmasters, concluding to have it found that they
had no right to keep this well in his private wall; and he obtained
a judgment, whereby the Court, * in respect it is not alleged the
4 defenders have any title to the wall in question, or have acquired
4 any servitude over the pursuers property, and that the liberty
* which, according to their own statement, they got by verbal
' tolerance from the pursuer's author, was of such a description
' that the proprietor was not barred from insisting on the well
' being removed when he thought proper to do so,1 ordained the
Stentmasters to remove the well from the property of the pursuer.
In obedience to this judgment the Stentmasters removed the well
from the wall, but merely to the edge of the foot-pavement, where
it was erected in the form of a cast-iron tube or pillar. Allan
then brought a second action to have Swan and the Stentmasters
ordained to remove the well * from the situation in which they
' have erected the same in Roxburghe street, immediately adjoin-
* ing the front of the foresaid property of the pursuer ;' and he
contended,
1. That the Stentmasters, without the authority of the Legis-
lature, had no power to make any erections in the public streets.
2. That the erection here in question was in opposition to the
former judgment of the Court.
8. That a well immediately in front of his property was a nui-
sance, to which he, as an individual, was not bound to submit ;
and,
4. That the water was allowed so to run against bis wall, as to
undermine and otherwise injure it.
To this it was answered,
1. That Magistrates of burghs were entitled to make such erec-
tions as wells, lamp-posts, &c. on the public streets, for the benefit
and convenience of the inhabitants at large ; and that the well
in question could not be removed without considerable incon-
venience to the inhabitants, whose only means of being supplied
with water was from these public wells.
£. That the previous judgment had reference only to the en-
croachment on the pursuer's private property.
3. That the well having remained in this situation unchallenged
for so long a period, no one was now entitled to object to it ; and,
4. That in point of fact no injury was done, but that the Stent-
masters were willing to take measures to guard against any da-
mage occurring.
The Lord Ordinary assoilzied the Stentmasters, with expenses;
and the Court unanimously adhered, with this qualification, that
COURT OF SESSION. 96S
the Steutmasters should be bound to prevent any Actual injury
to the wall. ,
The Lord Ordinary observed in a note : —
The only question raised either by the declarator or suspension is,
Whether a well can be placed on the street, opposite the pur-
suer s premises? It appears to the Lord Ordinary, that in the
circumstances in which Kelso is admitted to stand, the making of
public wells or fountains in proper places of the streets is not an en-
croachment,, but a legitimate use of the streets of this burgh of
barony. This use is quite different from erecting buildings on the
streets, which are, of course, of no use to the public at large, but
a species of appropriation, which, in a royal burgh at least, has
been said to be purpresture. Wells such as that in question are for
the use of the public, just as much as the pavement, kennel, lamp*
posts, or railings on the streets are. The only question, therefore,
seems to be, Is there sufficient reason for holding, that this well, be-
ing opposite to the pursuer's premises, is thereby placed in a part of
the street so improper, that it ought to be removed or suppressed ?
And in the circumstances, as appearing from the condescendence
and answers, the Lord Ordinary thinks that there is no such reason,
but the reverse. The circumstances, in particular, that this well was
placed in this part of the street so many years ago, and continued
there so long without objection in any quarter, seems of very great
weight. It is true that an error was committed in placing a part
of the well (or cistern of it) a few feet within the private property,
then of the Duke of Roxburghe, (the rest being placed on or over
the street,) without obtaining from his Grace a probative instru-
ment of right to do so, though it is plain the Duke, or those taking
charge of his affairs, must have acquiesced at least in this erection,
which stood openly on the street, forming the chief access to his
place from Kelso. And, accordingly, the pursuer coming as a sin-
gular successor in the place of the Duke, and taking advantage of
this error, has obtained a decree in favour of himself as a private
proprietor, removing the well as far as it is situated on his private
property, but this solely on the ground of the want of title of servi-
tude in the defenders, (vide the decree.) This, however, cannot do
* away the effect of the original and long-continued acquiescence, fix-
ing that, as far as the public is concerned, the well ought to stand in
this part of the street, or authorize either suppressing it, or placing it
in a different part of the street, without far stronger reasons than
any that are stated. As far as the public is concerned, there is
manifestly no substantial difference between what exists now, and
what existed before the interference of the pursuer as a private pro-
prietor. But it is only as one of the public having right to the
street, that the pursuer now sues ;— -he does not here sue as a private
proprietor encroached on. The fact dial it was the purauer, as a
264 CASES DECIDED IN THE
.private proprietor, who, insisting on bis private Tight, thrust forward
this well somewhat farther into the street, can surely not give him a
better light to complain of it than his opposite neighbour has, who
does not appear to have attempted any such complaint, and does not
seem to the Lord Ordinary to have any grounds on which he could
have supported it, if inclined ; nor does the Lord Ordinary think
that the pursuer has any.
In this opinion their Lordships entirely concurred*
J. Tait, W. S— A. Douglas, W. S— Agents,
No. 156* W. Auld, Suspender.— D. qfF. Moncreffi—Cuninghamc.
T. Baibd, Charger.— Jeffrey — Whigham.
Mutual Contract.— A party who" had entered into a contract with the proprietor of a
steam-engine for a supply of power, but had fallen into arrear of the stipulated
remuneration, and become insolvent, having given a charge to compel a con*
tinuance of the supply of power which had been withheld by the proprietor of
the engine; the Court, after allowing him time to find caution, which he failed to
do, passed a bill of suspension by the proprietor simpliciter.
Jan. 31. 1827. At/lb was proprietor of a snuff-manufactory, in which he had
„ ^ ' erected a steam-engine of considerable power. Contiguous to
2d Division. «.,*.,,, «., i * • +
Bill-Chamber. t"ls> Baird, the charger, built a power-loom factory on a piece of
Lord Alloway. ground feued by him for that purpose, and entered into a con-
' F* tract with Auld for obtaining from him the use of the surplus
power of his engine. By this contract, dated in 1823, and which
was to last for ten years, with a mutual break at the end of five
years, it was stipulated that Auld should furnish Baird with a
certain extent of steam power, not exceeding eight horses power,
at the rate of £90 per annum for each horse power ; and a pro-
' vision was made for determining the quantity of power used, and
settling all disputes between the parties by reference to arbiters.
Baird began to get the use of the power at Whitsunday 1828,
and continued to possess it till Whitsunday 1826. At this period
he had paid no rent whatever for the year ending at that term,
and Auld alleged that for the preceding year he owed a large
sum, having used a greater extent of power than he had paid for
in that year. He had also fallen into insolvent circumstances,
and called a meeting of his creditors; and the building in
which his manufactory was carried on was covered by heritable
securities, and the title-deeds were subject to a right of hypothec
on the part of his law-agent In these circumstances, Auld, not
being able to give a charge for the rent in consequence of the con-
tract being in Baud's hands, and not recorded, raised an ordi-
nary action before the Magistrates of Glasgow, in which he con-
L
COURT OF SESSION. 9B5
chided only for £900, being the rent of that extent
Baird himself admitted he bad enjoyed. He also took certain
steps in order to ascertain by arbiters, in terms of the contract,
the quantity of power supplied to Baird ; but the latter having
thrown various obstacles in the way of doing this, and another
half year being nearly expired without any payment of rent, Auld
determined to discontinue the supply of power. Baird thereupon
recorded the contract, and gave Auld a charge to compel him to
furnish the power in terms of the contract. Of this charge Auld
presented a bill of suspension, on the ground that he was not
obliged to continue the supply of power, which required a con-*
stant outlay, while Baird did not perform his part of the contract
by payment of the stipulated rent; and he contended that this
agreement was not at all of the nature of a lease of lands, but of
a contract of hiring ; as, for instance, of the use of so many horses
daily, which one party was entitled to give up as soon as the other
failed in the performance of his part of the agreement. Me
offered, however, to continue to supply the power, on caution be-
ing found for the rent.
On the other hand, Baird maintained that this was like an
ordinary contract of lease, and that he could not be deprived of
the possession of the subject let, whereby a great number of in-
dividuals would be thrown at once out of employment, merely by
falling a year's rent into arrear ; and as to caution being required,
thai Auld, by raising an ordinary action for the rent, instead of
charging on the bond, which would have obliged Baird in a sus-
pension to find caution, had barred himself, by the form of action
which he had chosen, from now insisting in it, and had also barred
himself from this hrevi manu suspension of the contract while the
matter was sub judice.
The Lord Ordinary having reported the bill on Cases, the
Court, after allowing Baird a few days to find caution, on his
failure to do so, unanimously remitted to pass the bill.
JLord Justice-Clerk.— This case is not attended with much diffi-
culty. Although the contract is somewhat of a novel description,
yet it has not the least resemblance to the contract of lease, but
is merely an agreement for the supply of power. We cannot here
go into the disputed fact as to how much power is to be paid for ; it
is enough that an admitted rent of £200 is unpaid for nearly three
half years ; and the charger being in such circumstances as to call
a meeting of his creditors, and having granted heritable securities
over hie property, the tide-deeds of which are in the hands of his
*ua of kisinosa, it is impossible to compel this man, who has no se-
curity lisr Us rent in the way of hypothec, as an ordinary landlord
£66 CASE6 DECIDED IN THE
i
.. has* to continue to give a supply of steam power,, when the other
party is in arrears and. will not find caution. It. may no doubt be
attended with. unfortunate circumstances to the workers in. this fac-
tory; but we must look to the other side also, and we see that the
suspender would be put to a great expense, without even a chance
of getting any remuneration. If the charger pay the arrears, of find
caution for them and the current rent, he may be entitled to get the
power supplied, but not otherwise.
Lord Pitmilly was of the same opinion.
Lord Alloway. — I also entirely concur. I reported the case with a
view to give the charger time to find security ; but, as he has not done
so, we must pass the bill.
V
W. Waddel, W. S. — J. Forrester, W. S. — Agents.
No. 1,57- Mrs. Dickson or Roughead, Pursuer. — D. of F. Moncreffi—
Skene.
.J. Hunter and Others, Defenders. — Jameson.
Husband and Wife — Discharge of Legal Provisiofis.—Held that a contract of sepa-
ration and provision, whereby a husband bound himself to pay to his wife, during
. her life and separation, an annuity of .£30, in consideration of which she re-
nounced all legal claims against him, was not effectual to bar her from claiming
her legal provisions on his death,— the amount not being fair, onerous, and ade-
quate in the circumstances of the husband.
*
Feb. 1. 1827* The pursuer Isobel Dickson was married in 1814 to James
1st Division. Roughead, tenant in Jerdanfield, and resided with him till April
Lord Meadow- 1815, when a deed of separation and bond of aliment was exe-
bank. cuted between them. By this deed Roughead bound himself
' to make payment to the said Isobel Dickson of the sum of £3Q
* sterling during the said Isobel Dickson's life, and the continue
' ance of the present separation ;"* but declaring ' that the said
* annual payment shall be in full of all claim which she, the said
' Isobel Dickson, has or might have had right to from or against
* the said James Roughead, or his means and estate, either in
' virtue of her jus relicts, or any other right or privilege, though
' not here enumerated, to which a lawful wife is entitled by law
* or otherwise.* On the other hand, she bound herself to live
separate from him during her life, and accept ' of the said sum
4 of i?30 sterling, settled on her in manner foresaid, in full of all
* claim for separate aliment, board, clothes, or other necessaries
* and expenses of all kinds, which she can or might demand by
' law from the said James Roughead as his wife, or from his fore-
* saids, and in full of all right which she can, could, or might
' have claimed from the said James Roughead, or his means and
COURT OP SESSION: 967
' effects, or can or might claim from his heirs &c., either in vir-
* tue of her jus relict*, or in virtue of any other right or privi-
1 lege to which a lawful wife is entitled by law or otherwise : All
4 which rights and privileges she, the said Isobel Dickson, hereby
' renounces for ever.1
At the time of the execution of this deed, no state of funds was
exhibited ; but it was admitted that Roughead was then possess-
ed of free funds to the amount of upwards of i?2700, although
it was alleged that his farm was at that time a losing concern.
No security, other than his own personal obligation, was granted
for payment of the annuity ; and on his death it was found that
he had acquired funds, by succession and otherwise, to the ex*
tent of upwards of £5000, so that he died possessed of about
JB&700. He left no lawful children, and he had conveyed, by a
deed of settlement, his whole effects to Hunter and others, as
trustees, for the purpose of dividing his free residue among his
grandchildren by a natural daughter.
Thereafter the pursuer brought an action against them, con-
cluding for payment of one half of the moveable funds, as the
share or proportion of the goods in communion belonging to her
as relict
In defence it was maintained, That as she had expressly re-
nounced her legal-provisions by the above contract, in considera-
tion of the payment of the annuity, and as it had been regularly
paid, both prior and posterior to the death of Roughead, it was
not competent for her to revoke that deed.
To this it was answered* That the deed could not regulate the
rights- of parties, except during the separation, and was revocable,
quoad ultra, as a donation inter virum et uxorem ; and that at all
events the annuity of £ 80 was not a fair and reasonable provision
for the widow of a person who had died possessed of funds to the
amount of nearly £9000.
The Court, on the report of the Lord Ordinary, found ' that
' the pursuer is not bound by the contract of separation, and re-
' pelled the defences founded thereon, and found that she is en-
' titled to her legal provisions as the widow of James Roughead
* deceased ;' and remitted to proceed accordingly.
The Judges were of opinion, that as no statement of Roughead's funds
bad been exhibited at tbe date of the contract, — as the annuity
was not a fair and adequate provision, and as no security had been
granted even for tbat small provision, it could not be considered as
truly onerous, and therefore it was not binding on tbe pursuer to the
effect of preventing her from revoking it, and claiming her legs!
£68 CASES DECIDED IN THE
Pursuer** Antkmtiet*-\. Erek. 0. 39 ; M'Lellan, Dae; 22. 175B, (6098) ; Watson,
Jane 17. 1774, (6103)-; Scott, Aug. 10. 1776, (No. I. A pp. Husband and Wife) ;
Cramond, Jan* 4. 1757,(6103) ; Palmer, Jan. 25. 1810, (F. C.) ; M'Diarmid, May
17. 1826, (ante, Vol. IV. No. 581.)
Defenders9 Atitftoritiee.—Qxbb, March 14. 1634, (6116); Chalmers, July 25. 1710,
(6056) ; M'Pherson, Jan. 30. 1750, (6113) ; Stewart, Nov. 88. 176% (6100) ; Pal*
mer, Jan. 25. IS 10, (F. C.)
R. Matthew,-±J. H. Lothian, — Agents.
No. 158. . J. Blaixie, Petitioner. — Skene;
Curator Bonis. — Authority granted to a curator bonis to complete his ward's titles.
Feb. 1. 1827. The Court, on the application of Blaikie, curator bonis to
2d Division Skene of Carraldstone, a person deaf and dumb from his birth,
MK. granted authority to complete Skene's titles as heir of entail in
the lands of Carraldstone and others.
Authorities.— \a>t& Barfeeny, 171 1 ; A. v. B. July 30. 1736, (6. Elchies, voce Tu-
tor and Pupil); Baird &c. Jan. 20. 1741, (Ktlk. p. 585); Riddell, Nov. 11. 1746,
(Kilk. p. 586) ; Sir J. C. Anstrather, March & 1818, (F. C. note.)
Inglis and Weir, W. S. Agents.
No. 159. J. Dick, Suspender.— Fidkrton—Sand/brd.
Fleshees of Stibling, Chargers.—-!), of F, Moncreffi—SdL*
Gen* Hope— Forsyth.
Exclusive Privilege— -Stot. 1703, c. S.-i-TheFleshers* Incorporation of aBurgfc can-
not acquire, in opposition to the statute 1708, c. 9, (which held as to this n«t to
be in desuetude,) the privilege of restricting the sale of butcher meat by un>
freemen to the public market and market-days.
Feb. 1. 1827. The Incorporation of Flesbers of Stirling, (which consists at
2d Divis promt of two members,) alleging that they possessed an exclu-
Lord Macken- **ve privilege of selling butcher meat within burgh, (except an
sie. market-days, when unfreemen might sell, but only in the regular
market-place, and on payment of certain dues,) presented an ap-
plication to the Magistrates, setting forth that Dick, an unfree-
' man Aesher, was in use to slaughter cattle within the burgh, and
to sell the flesh every day of the week, and that not within the
market-place,- but in a private shop in the burgh, and praying the
Magistrates ' to prohibit and discharge the said John Dick from
* exposing and sending fleshes or butcher meat within the burgh
€ in all time coming, excepting within the fleshmarket, and upon
' the ordinary market-days, upon bis paying the dues and cus-
* touas upliftable there from unfreemen and country dealers, ac-
' cording to use and wont ; and to prohibit and diaahirge him
COURT OF SESSION. 5289
' also from slaughtering within the slaughter-house of the incor-
' poration, or elsewhere within tbe.buigh.'
In support of their right to make this application, they found-
ed on alleged usage, and also on an old proclamation, annually
repeated within the burgh, ordering, inter alia, ' that no meat
' shall be kept and sold in houses or cellars, under the penalty of
' £% Scots for each beast concealed after the hours for opening
1 the market.'
It appeared from Dick's deposition, emitted on a reference by the
ioeorporation, that he had not slaughtered cattle within the burgh
since 1817, and that prior to that period be had the permission of
the incorporation, for which he hud paid a certain sum annually ;
and in regard to his selling flesh within the burgh in a private
shop, and on other days than the market-days, he contended that
unfreemen fleshers were entitled to sell butcher meat within burgh,
without restriction either as to place or time, in virtue of the sta-
tute 1703, c. 9, which was in full observance as to this matter,
whereby it is declared, that ' it shall be leisome to all persons
' whatsoever to sell and break all sorts of fleshes on every lawful
* day of the week, and that in all the burghs and towns of this
c kingdom, free of any imposition whatsomever, the petty customs
' of burgh excepted/ He further pleaded, in reference to the
annual proclamation of the Magistrates, founded on by the incor-
poration* that it was entirely a matter of police, intended chiefly
to prevent forestalling, which the incorporation were not entitled
to insist on, having no exclusive privileges to be affected by the
breach of it.
In answer to this the incorporation pleaded, That the act 1703
was in desuetude, or at least that it had never been observed in
the burgh of Stirling, so that they had, notwithstanding, acquired
the exclusive privilege claimed by tbem, and were entitled accord-
ingly to complain of the breach of any regulation whereby the
beneficial exercise of their rights was injured.
The Magistrates, on considering a proof of the alleged usage,
found ' it proved that the fleshers of Stirling have, for more
than forty years past, enjoyed the privilege of an incorpora-
tion, and have in particular possessed the privilege of slaugh.
tearing within burgh, to the exclusion of all others, without
tbeir consent or agreement ; also that they have, during the
flame period, prevented all unfreemen from selling fleshes or
batcher meat, except within the market-place, without their per-
misffion ;' and they therefore found ' that no unfreemen can
slaughter within this burgh without leave of the incorporation,
or sell fleshes or butcher meat but in the market-place, and that
270 CASES DECIDED IN THE
•
' on market-days only, without their leave ;' and interdicted c the
' defender John Dick to that effect accordingly.'1
Dick having continued, notwithstanding this interdict, to sell
butcher meat in his shop as formerly, the incorporation presented
a petition to the Magistrates, complaining of this breach of inter-
dict, and praying to have him imprisoned till be should find cau-
tion to obey the interdict in all time coming. On this petition
Dick underwent an examination by the Magistrates, in which be
admitted selling flesh in his shop, and stated that * his reason for
' continuing the sale is, that he intends to take the cause to an-'
' other Court.1 The Magistrates thereupon granted warrant for
his incarceration until he should find caution in terms of the
prayer of the petition, and he was incarcerated accordingly. He,
however, immediately presented a bill of suspension and libera-
tion, which was passed ; and the expede letters having come to be
discussed before Lord Mackenzie, his Lordship suspended the
letters simpliciter, and found Dick entitled to expenses, * under
c deduction of the expenses arising from the breach of interdict
* committed by the complainer,' to which be found the respond-
ents entitled. ' To this interlocutor the Court unanimously ad-
hered.
The Lord Ordinary observed in a note : —
The Lord Ordinary thinks, that, in respect to slaughtering, there
was no occasion for any procedure against the complainer, who ap-
pears not to have done anything in Violation of the righto of the re-
spondents, and who claimed nothing contrary to their rights. In re-
spect to the selling of flesh by the complainer, not being entered in
the corporation of fleshers, and on days not market-days, the Lord
Ordinary thinks that the statute 1703 has not been shown to he in de-
suetude generally, but the contrary ; and he does not think it could
go into desuetude in Stirling, while it was observed in other places.
In respect to selling in a shop not being in the market, the Lord
Ordinary thinks that a restriction in any town in Scotland of all sale
of flesh to the market, and consequently to the market houre, is not
compatible with the spirit and intention of the statute, and at any
rate he sees no good authority for such a restriction in Stirling.
The proclamation of the Magistrates seems to he an antiquated one
against forestalling or keeping up meat from public sale, not now of
much authority; nor does the Lord Ordinary see what title the
fleshers could have to enforce it, if it were an act of Parliament. A
statute prohibiting the sale of flesh, except in the public market*
would, it is conceived, be enforced, by complaint against transgress-
ors, at the instance of the public prosecutor, not of any individual
flesher, unless specially authorized to prosecute, any more than of
COURT OF SESSION. 371
any individual buyer of flesh, or any number of such buyers* In re-
gard to the breach of interdict, the complainer war quite wrong in
violating the interdict while it stood against him. His intention to
suspend was no sufficient excuse, and the proceedings against him
there seem far from severe ; but there seems nothing which can be
left to operate against him under that proceeding, except the finding
for expenses.
Lord Justice-Clerk.— Even assuming the statements of the incor-
poration to be correct, Dick has been a great deal too hardly treated.
It was not justifiable at common law to grant summary warrant for
imprisonment, as was here done, without, his being ordered first to
find caution ; and therefore, as to the liberation, I could not have
hesitated one moment ; at the same time, we can never countenance
any breach of interdict, and the Lord Ordinary has followed a proper
course in finding him liable in expenses as to that matter. In re-
gard to the slaughtering of cattle within the burgh, it appears that
for some time past Dick has slaughtered within the county of Clack-
mannan, and his admission of having at one time slaughtered within
the burgh is qualified with this, that he then paid his dues ; there is
no sufficient evidence, therefore, that he has slaughtered without
permission. The next point of the case is the alleged violation of
the incorporation's privilege by the sale of meat in the burgh on days
not market-days ; and this raises the question, whether the act 1703
be in desuetude ? No doubt, the first part of it is so, and indeed
it never appears to have been enforced for a single day. But then
there is the other important provision, .extremely beneficial for the
community, allowing out-town butchers to break and sell flesh within
burgh. Now, it is in no way inconsistent with our law, that, one
part of a statute should go into desuetude, while another part re-
mains in force ; and it is notorious that the latter part- of this statute
is in observance all over the country. But it is said to be in desue-
tude in Stirling, and that the corporation have acquired a right con-
trary to the public law of the land. We can give no countenance
to such a doctrine as that a statute should be in observance all
over the country but in one place ; and 1 therefore agree with the
Lord Ordinary that the statute must receive full effect there as
elsewhere. We then come to the third point, whether the c untry
fleshers are obliged to sell in the market under authority of the pro-
clamation .founded on ? But supposing that proclamation to be less
ambiguous than it is*. I entertain the greatest doubts of the legality
of the Magistrates of a burgh pretending to declare law contrary to
the enactments of the Legislature. A police act might give some
such authority, but a proclamation by the Magistrates cannot take
away privileges bestowed by an act of Parliament which imposes no
such restrictions. I therefore agree entirely with the Lord Ordi-
nary.
1*ord8 Pitmilly and Alloway concurred.
vol. v. s
274 CASES DECIDED IN THE
« proceed on induciae of forty days against the defender resident
« in Orkney, and of six days against the other defender.*
J, S. Darling, — Agent.
No. 163. M. Perstou, Pursuer.— D. qfF. Manor eiff— Ivory.
J. M'Alistee, Defender.— rAowwon— A. McNeill.
Repetition-Superior and rassal— Clause of Pre-emption.— Circumstances under
which it was held that a person who had purchased lands, in the titles of which
there was a clause intended to give a right of pre-emption to the superior, and
who, in order to get an entry, paid the superior a sum of money to pass from that
right, was not entitled to repetition from the seller.
*eb. 2. 1837. The late John Perston (of whom the pursuer was the heir and
1 ^mTioN representative) purchased certain .lands held of Sir Archibald
L^Hdte Campbell of Succoth and his eldest son from the defender, who
granted the usual obligation to infeft by two several manners of
holding, the one thereof to be holden of himself in free blench,
and the other under his immediate lawful superiors for payment
of the feu-duties specified in the titles ; and for these purposes he
granted procuratory of resignation and precept of sasine, and
bound himself to warrant the right to be free and safe. On this
disposition sasine was taken in virtue of the precept
By the original feu-charter it was stipulated by the superior,
that if it should happen that the vassal should « sell, dispone, or
< alienate the said lands and pertinents to any person or persons
' without redemption, then and'in that case they shall be bound
« and obliged to make the first offer to us and our foresaids, &c.
• * for the just price of the same, and no more, for which they would
' sell the said lands to any other, and that by the oath of the
' buyer and seller ;' and failing the superior accepting that offer,,
then he was to receive the purchaser on payment of a taxed
sum.
On the death of his brother, the pursuer being desirous to enter
with the superiors, applied to them accordingly; but they, founding
on the above clause, and insisting that they had a right of pre-
emption, refused to enter him, except on payment of a full year's
~ rent, which he accordingly paid. He then brought an action of.
relief against the defender, alleging that, prior to selling the pro-
perty, he ought to have made the first offer to the superiors, so
as to have enabled the late Mr. Perston, or the pursuer his repre-
sentative, to have got an entry without obstruction ; and as he
had become bound to infeft them by a double manner of holding,
and had granted a clause of absolute warrandice, he ought to be
COURT OF SESSION. 875
ordained to repay the sum which the pursuer had been compelled
to advance, in order to obtain a public infeftmenk
To this it was answered, that the late Mr. Perston must have
been aware, of the clause which appeared in the titles, and have
taken it into consideration in purchasing the lands; and at all
events, as it was one of the casualties stipulated for by the su-
perior, it fell upon the singular successor, and not upon the seller.
The Lord Ordinary assoilzied the defender, and the Court ad-
hered.
The Court seemed to be of opinion that the clause of pre-emption was
unintelligible, and not effectual, seeing that it provided that after the
lands were effectually sold, they were to be offered to the superior ;
but that at all events the pursuer had acted rashly in paying any-
thing to the superior before the validity of it had been ascertained.
Gibson-Craigs and Wardlaw, W. S- — A. Swinton, — W. S. —
Agents.
T. Megget, W. S. Pursuer.— Murray. No. 164.
W. Thomson, Defender.— R. BeU—J. W. Dickson.
Agent and Client.— Circumstances under which an agent who had been advised by
counsel to prepare a summons in a particular form, and which was found errone-
ous, was entitled to payment of his account, although instructions to a different
effect had been given/
In February 1821, the defender Thomson, through his agent Feb. 2. 1827.
in the country, transmitted a memorial with queries relative to \„ division.
the institution of an action at his instance against a corporation Lord Eidin.
in Dundee, of which he was a member, for the alleged misappli- D«
cation of part of their funds. The memorial concluded by stating,
that « these are the general outlines of the case ; and if Mr. Meg-
« get or counsel shall be of opinion (and it is particularly requested
* that due consideration be given to the case) that a conclusion
* regarding the expenses," &c. In a letter accompanying this
memorial it was stated, that * we would wish all those members
' who attended the meetings to be included in the action, to save
* any risk of taking the wrong persons/ Megget in consequence
laid the cause before counsel, who gave an opinion that Thomson
was entitled to insist that the funds should be restored ; and this
having been comunicated to his agent in the country, that person
immediately wrote to Megget, that * I am directed to request
* you forthwith to follow up the second and third branch of the
' memorial and opinion by an action of declarator, and for repeti-
376 CASES DECIDED IN THE
' tion of the monies illegally paid away,' fee. ; and he concluded
by requesting him to give (mea draft of the proposed action, in
< whatever shape it may be recommended.1 On receiving thin letter,
Megget again consulted counsel, who (it was stated) advised a
summons to be raised against the office-bearers of the corpora-
tion, instead of the members. A summons in these terras was ac-
cordingly prepared and revised by counsel, and it was then trans-
mitted to Thomson, who received it in the absence of his country
agent, and caused it to be executed against the office-bearers.
The action was afterwards dismissed by the Court, on the
ground that it had not been directed against the proper parties,
(see ante, Vol. IV. No. 192.) Megget then brought an action
for payment of his account of expenses against Thomson ; in de-
fence against which he pleaded, that he had directed the action
to be instituted against the members of the corporation, whereas
Megget had raised it against a different and a wrong party ; and
as he had not been instructed to take the opinion of counsel as to
the manner of bringing the case into Court, and was not entitled
to do so unless specially authorized, he had no claim against the
defender.
To this it was answered,
1. That it was plainly implied in the communications made by
the defender that Megget was to consult counsel, and at all events
it was his duty to do so in a case which was of importance and
difficulty, and to be guided by their advice ; and,
% That as the summons had been transmitted to the defender,
and had been executed under his orders against the office-bearers,
and as he had never objected to the terms in which it was drawn,
he was not entitled to resist payment.
The Lord Ordinary decerned in terms of the libel, and the
Court adhered.
Loan Balgbay— The general rule certainly is, that an agent is bound
to attend to the instructions which are given to him ; but in this case
it is impossible to find fault with the pursuer for allowing himself
to be guided by the advice of counsel. Besides, the defender ac-
quiesced ia this, and did not object to the form in which the sum*
mons was framed.
Lord President. — The instructions as to calling all the members of
the incorporation were not positive. It was merely said that ' we
' would wish' them to be called ; but tbe summons was to be drawn
in such way as should be recommended. If, therefore, counsel gave
it as their opinion that the office-bearers should be called, which they
certainly did, it was tbe duty of the pursuer to foDow their advice.
Lord Gillies. — If tbe pursuer consulted counsel on this point, aad
COUBT OP SESSION. 277
acted by their ad vice, I tkink be is exonered ; and I alio think that
in a matter of this nature ha was bound to follow the advice of
oauatel, if ha was told that it was the only safe course. But my
doubt is, whether there is sufficient evidence before us that he did
act by the advice of counsel* Perhaps, however, the defender may
be barred by acquiescence.
Lord Craioie. — I also think that the fact should be investigated ; but
I am quite clear that where instructions are given to an agent to
prepare a summons in a particular form, and if he deviate from them,
be must, in order to justify himself, show that he was desired by
counsel to do it in a different manner. But I do not see from any
evidence before us, that counsel directed the pursuer to raise the ac-
tion against the office-bearers.
T. Mbgokt, W. S— M. Patison,— Agents.
i
J. B. Tatnajll, Suapender.—Fullerton—Hopkirk. No. 165.
A. Bkid and Agents, Respondents.— D. qfF* Moncroff—
Currie.
Interdict Jvritdictiou*— Interdict granted to prevent the trustee on a sequestrated
estate using a procuratory of resignation vested in the bankrupt, who had pre.
viously granted to a creditor an heritable bond containing the usual assigna-
tion to the writs and titles, and in virtue of which procuratory the trustee wag
attempting to pass a signature and charter in Exchequer to cut out the heritable
creditor.
This was an application by bill to have Reid, trustee on James Feb. 2. 1827.
Gibson's sequestrated estate, and his law-agents, interdicted from 2d j>lvwmt
using certain title-deeds belonging to the bankrupt for the pur* Bill-Chamber.
pose of obtaining a Crown charter,, which was in cursu in Exche- Lovd Newton.
quer, under the followiog circumstances :— F'
In 1702 Andrew Gibson (primus) purchased the lands of
HiHhead from one Haliburton, who granted him a disposition
wftb procuratory and precept. Andrew did not execute the pro*,
curatory, but was base infeft on the precept. In 1734 be died,
and was succeeded by his son John Gibson, who made up an
erroneous title by expeding a special service, on which he obtained
a Crown charter, and was infeft, as if his father's title had been
a public holding. On John's death, Andrew (secundus) succeed-
ed, who discovered the blunder, and, by way of remedying it, he
served heir in general to Andrew (primus,) his grandfather, pass-
ing over his father John, but overlooking the circumstance, that
John's special service necessarily included a general service to
Andrew (primus.) Conceiving that he had thus taken up the
unexecuted procuratory in Haliburton's original disposition to his
278 CASBS DECIDED IN THE
grandfather, he resigned thereon, and obtained a Crown charter,
on which he was infeft. He then, as superior, granted a precept
of clare constat in favour of himself as heir to his grandfather in
the dominium utile, which he thereafter resigned- in his own
hands ad remanentiam, in order to consolidate the base right
feudalized in his grandfather's person with the superiority taken
up by himself in the way above mentioned.
Andrew (secundus) was succeeded by his son, who again was
succeeded by his son James Gibson, both of whom made up titles
to the property as it stood in the person of Andrew (secundus.)
During their respective possession, James Gibson and his father
granted various building feus and heritable securities, and in par-
ticular James granted to the suspender Tatnall an heritable bond
for £4i500 borrowed money, .which bond contained the usual as-
signation of all the granter's writs and evidents, as per a relative
inventory, in which was expressly mentioned Haliburton's original
disposition to be made forthcoming to the. creditor when required,
he giving a receipt for the same to return them within a short time.
James Gibson having been sequestrated, Reid, the trustee, paid
one term's interest on this bond ; but having discovered the flaw
in the progress occasioned by the mistake of Andrew (secundus)
having supposed that he had taken up the unexecuted procuratory
in Haliburton's disposition, while it had in fact been carried by
the special service of his father John, whom he had passed over,
he proceeded to have James, the bankrupt, served heir in general
to John ; which having been done, he, as having right to the pro-
curatory in Haliburtons disposition, in character of trustee, under
the adjudication in the sequestration, which was special as to the
lands in question, and in implement of which the bankrupt had
granted a disposition and assignation of this procuratory, took
steps to expede a charter of resignation in his own favour, with-
out making up any feudal title in the person of the bankrupt,
thereby cutting down the heritable securities granted by him while
possessing under his former defective title.
The trustee having accordingly obtained a signature revised in
Exchequer, Tatnall presented a bill of suspension and interdict,
directed against him and his law-agents, praying to have them
interdicted * from proceeding further in using the said title-deeds,
' and procuring the said signature and charter completed.*
The Lord Ordinary having refused this bill, Tatnall reclaimed ;
and the cause came on to be heard the day previous to the re-
signing day in that term of Exchequer when the charter would
have been expede.
For Tatnall it was. contended, That as his heritable bond
COURT OF SESSION. 879
* contained an assignation to Hatf barton's disposition and procura-
tory, on which the trustee was attempting to resign, the right to
that procuratory immediately accresced to him on the service of
the bankrupt to his predecessor John Gibson, and that it there-
fore became his writ to the extent of validating his heritable
bond ; that the trustee, therefore, was not entitled to make any
use of it which would defeat his security ; or at all events that
he was entitled to have this question tried, which he would be
entirely precluded from doing, if the trustee were allowed to ac-
complish his object ; and as to the competency of the Court in-
terfering in such circumstances, that it had been settled, in much
less favourable circumstances, in the case of Kilbucho.
To this it was answered, That the trustee was entitled and
bound to take every step in his power to secure the heritable
estate to the creditors at large ; — that the bankrupt was vested
with the main right in the property, on which the creditors* right
was merely a burden ; — and that the trustee having taken up
this right in virtue of the sequestration, followed by a dispo-
sition and assignation by the bankrupt to the procuratory, could
not be prevented from using it for the benefit of the creditors by
a form of procedure which was in fact an interdicting of the Ba-
rons of Exchequer from granting a charter; and that this case
differed from that of Kilbucho, in so far as there were in the latter
case two conveyances of the main right by voluntary deeds.
The Court unanimously passed the bill, and granted the in-
terdict.
Lord Justice-Clerk. — We are called on here to exercise a very im-
portant and delicate function, and I confess that, in a case of this
novel description, I should have wished to hare had a little more time
for consideration than the circumstances will permit. Nothing has
been stated on the part of the trustee to show that granting the in-
terdict will create any prejudice to the creditors ; while, on the other
hand, a refusal will enable him to accomplish bis purpose of cutting
out the suspender, or will at least lead to the necessity of much legal
procedure in the way of reduction, &c I hare no doubt of the
power of the Court to grant such an interdict, which was done in
the case of Kilbucho ; and although the proprietor of lands is un-
doubtedly entitled to the custody of the writs regarding the estate,
yet the heritable creditor here has an assignation to them to the ef-
fect of supporting his security; and, in the special circumstances of
tins case, I think that the Court is called upon in equity to interfere
to prevent any step being taken which will give one of the parties
such an advantage in the determination of their respective rights*
Loro Pitmilly*— I am of the same opinion* . There is no occasion
to go deeper into the titles, than that this is a competition for the
280 CASES DECIDED IN THE
procurator?. No doubt, the trustee fa entitled and bound to try to
make hi* rights complete ; but if he does, he carries away the sub-
ject from, the heritable creditors, and that is the very reason Why we
should interfere, which we could not be called upon to do, if things
were to remain entire. The trustee will suffer nothing but delay
till his right be determined, if be is really entitled to exclude the
heritable creditor ; and I hare therefore no doubt of the competency
and propriety of interfering.
Lord Alloway. — Had it not been for the case of KUbucbo, I should
have doubted the power of this Court to stay proceedings in the
Court of Exchequer ; but it is a precedent in point, and although
one party have accidentally got possession of the writ, it is the duty
of the Court to interfere to prevent him availing himself of that ac-
cidental circumstance. We cannot try the merits of the rights of
the two parties here, and we must therefore grant the interdict.
Lord Justice-Clerk. — In passing signatures, the Court of Exchequer
act merely ministerially ; but the bill steers clear of any difficulty, by
merely praying for an interdict against the party using the deed.
Suspender's Auttority.-»DickwD. of Kilbucha, March 6. 1815, (F. C.)
J. G. Hopkirk, W. S*— J. Duncaw, — Agents.
No, 166. H. Monteith and Compact, Suspenders.—/), of F. Moncreiff
— Monteith.
W. Blackie, Charger. — Skene — Donald.
Stat. 12. Geo, /. e. 12. &r°.—Cbmpensatit>t* *Manu/aets^er.^^MsavdatituTcn not
entitled to compensate wages doe to their workmen with debts incurred by the
workmen for furnishings at stores kept by the manufacturer, though such debts
were voluntarily contracted after the engagement of the workers.
Feb. 2. 1827. B y the statute 1 2. Geo. I. c. 84, § S, it is enacted, « That every
2d Division. ' clothier, sergemaker, &c. shall and they are hereby obliged to
Lord Mackcn- « pay unto all persons by them employed in the woollen mtmufac-
p#* ' ture the full wages, or other price agreed on, in good and law-
' f ul money of this kingdom/ (afterwards extended to bank notes,)
c and shall not pay the said wages, or other price agreed on, or
' any part thereof, in goods, or by way of truck, or in any other
' manner than in money as aforesaid, or make any deduction from
* such wages or price for or on account of any goods sold or de-
' livered previous to such agreement by any person or persons
' whatsoever^ And it is farther provided^ * That for more easily
' recovering the said wages, &c. it shall be lawful for any two or
« more Justices of the Peace to summon before them the party or
* parties so offending, and, for non-paympnt of such wages or price
COUBT OF SESSION. 281
1 agreed on in money as aforesaid, or sufficient satisfaction given
' for the same to the good liking of the party or parties aggrieved,
* to issue their warrant for levying such wages, Sec. by distress,'
&c These provisions, which were originally confined to the
woollen manufacture, were by subsequent acts of Parliament ex-
tended to various other manufactures, and, among the rest, to that
of cotton*
The suspenders, Henry Monteith and Company, are proprie-
tors of very extensive cotton-mills at the village of Blantyre,
where they also keep a store for supplying their workers with the
various necessaries of life. The wages of the workers are always
paid in money or bank notes, and it is entirely voluntary on their
part to frequent the store of the company, where, however, they
are generally allowed to take* goods on credit to a certain extent.
Blackie, the charger, who had been for several years in the en*,
ployment of the company, was dismissed by them in November
18252, at which time there was due himi?5:2: 10 of wages, while
be, on the other hand, was indebted to the store for furnishings
in the sum of JP4 : 0 : 2§. Having demanded payment of his
wages, the company proposed to set off against them the debt due
by him to the store ; but this he refused to accede to, and accord-
ingly raised an action before the Sheriff of Lanarkshire for pay*
meat of his wages. The Sheriff found 4 that the defenders have
* no right to pay or compensate the said wages by furnishing of
* goods, liquors, and others, from the store at Blantyre works,9
and decerned for payment accordingly. Blackie thereupon
charged the company, who presented a bill of suspension, which
was refused by Lord Cringletie as Ordinary, but was passed by
the Court, with the view of settling the question by an authorita-
tive judgment*
The letters having been expecte,' it was contended by the com-
pany, That the case of compensating wages, with a debt incurred
voluntarily after the engagement of the worker, to a store belong.
ing to the manufacturers, did not fall within the words of the
statute, which was intended to prevent the workers being com-
pelled to accept payment of wages in goods and commodities, or
under deduction of any claim for goods furnished prior to the en-
gagement of. the worker, but that there was no prohibition
against compensating the wages with a debt for goods furnished
after the engagement ; and it was further pleaded that this view
of the statute was confirmed by the circumstance that an act had
been passed in the year 1820, (1. Geo. IV. o. 98,) which, after
narrating the previous statutes, set forth, that * the protection in*
< tended to be afforded to artificers, &c. by requiring the pay-
282 CASES DECIDED IN THE
' ment of their wages in money or bank notes, is not effectually
.' given by the provisions in the said acts contained/ and enacted,
that any employer of artificers, &c. who should, after the passing
of the act, * make or impose, or cause to be made or inlposed,
' any restriction or agreement, either directly or indirectly,' as. to
* the place or manner of expending or laying out the whole or
' any part of any wages, money, or bank notes agreed to be paid
' to such artificer, &c. or as to the person or persons with whom
,' the same, or any part of such wages, &c. shall be expended or
•' laid out,' should forfeit, ' in lieu of any penalty or penalties im-
( posed by the said recited acts, or any of them, any sum not less
' than jPIO, nor more than £20? for each offence ; which act, it
waa said, would not have been considered necessary, had the
former statutes borne the construction put upon them by the
charger.
Oa the other hand it was contended, *
That the attempt to compensate wages due to a workman with
a debt incurred at a store belonging to the manufacturer, > was a
plain evasion of that provision of the statutes which directs that
wages shall not be paid ' in any other manner than in money
' as aforesaid ;' and as to the 1. Geo. IV., that it was intended to
prevent a totally different abuse,— that of binding the workers to
spend their wages, after* they had received' them, at some place
favoured by the manufacturer; and that, even to this effect, it bad
been afterwards considered to be unnecessary, as its period of en*
durance was only a single year, and it had never been renewed.
The. Lord Ordinary repelled the reasons of suspension, and
the Court unanimously adhered.
The Lord Ordinary observed in a note :—
The inconveniences pleaded by the suspenders may afrord very good
grounds for the speedy repeal of the statute by the Legislature ; but,
while it stands unrepealed, it must be fairly interpreted and en-
forced. And it still seems to the Lord Ordinary impossible, under
this statute, to authorize extinction of claims for wages by compen-
sation for goods furnished at any time. If the goods are furnished
after the wages are earned, it seems manifest, to sustain compensa-
tion for these goods against the wages would be just in substance to
sanction payment of these wages afierhand in goods. A master
saying to bis workmen, ' I must not pay your wages in goods, but I
* will sell you goods, and then compensate your wages with the price
* of these goods/ would (however fair in point of fact his intentions
might be towards the workmen) be attempting what must in law be
regarded as a gross fraud on the statute, and the Court could not
lend him aid in such attempt by sustaining such compensation.
COURT OF SESSION. 283
Again, if the goods aire furnished after the agreement of service for
wages, but before the wages are earned, to sustain compensation
would be just in substance to authorize payment of the wages before-
hand by furnishing of goods, which is no more legal than payment
afterhand by such furnishings. The only case open to doubt under
the first clause was, where the goods had been sold or delivered be-
fore the agreement of service for wages took place at all, and that
case is provided for expressly by an additional clause. In this case
it does not seem to be explained whether the furnishings were made
after the wages had been earned, or before ; but this does not seem
material.
Lord Justice-Clerk. — This is a very important question to a large
class of the community. The acts founded on by the charger are of
a very salutary description, and are favourites of the Legislature,
being expressly excepted in the 5th Geo. IV., which repealed the
combination laws ; and if ever there were statutes whose terms were
unambiguous, it is these. The manufacturers are obliged to pay
the wages of their workmen in good and lawful money, and are pro-
hibited from doing it ' in any other manner of way than in money as
' aforesaid,' and the wages may be summarily levied by distress. It
is the clear meaning of the Legislature that wages were to be paid
in money, (afterwards extended to bank notes,) and in money alone.
In the present case, it no doubt was quite optional for the workers
to go to the company's store ; but still, after having been allowed*
credit there, the setting off the debt flue for goods is a manifest
. evasion of the act of Parliament, and would entirely defeat the
protection intended to be afforded to the workmen. A great deal
is founded on that part of the act which prohibits deduction for goods
furnished previous to the engagement ; but I agree with the Lord
Ordinary that this was to meet another device for evading the sta-
tute, and can have no application here. As to 1st Geo. IV., it was
enacted only for a year, and its object was to provide that if any
person should stipulate, after having complied with the former sta-
tutes, by making actual payment of the wages in money, that the
worker shall spend it in a particular place, he should be liable in a'
penalty. When we passed the bill in this case, it was not from any
doubt of the correctness of Lord Cringletie's opinion, but to settle
the question authoritatively.
Lords Pitmilly and Alloway entirely concurred.
J. Hamilton, W. S. — Mack and Wotherspoon, — Agents.
384 CASES DECIDED IN THE
No. 167. Rev. W. Leslie, Pursuer-— D. gf F. MmerAff^Graham Bell
—Innes.
Eakl of Moray, Defender. — Cuninghame— -Anderson.
Prescription— Repetition— Bona Fide*.— 1.— A vassal being taken found by a feu-
contract to relieve the superior of the public burdens, under a ojualiflcatioa that
• the superior was to pay one fourth part thereof, but which* qualification was
omitted in the charter granted 20 days thereafter, and the whole burdens having
been paid by the vassals for nearly two centuries— Held that they were not en-
titled to be relieved by the superior of one fourth of the burdens.— 2*— Feu-du-
ties in kind having, during that period) been paid by a different measure from
that stipulated in the charter, Held that the superior was defended by bona fides
against a claim for repetition of the excess.
Feb. 2. 1827. By feu-contract dated in 1652,. James Earl of Moray: sold the
lands of Balnagieth to Patrick Tulloch, younger of Bogton, and
Ld. Cringletie. b°und himself with all convenient diligence to vest and seise the
F. said Patrick Tulloch by sufficient charter of feu-farm, contain-
ing precept of sasine in the end thereof. The feu-duty stipu-
lated was 84 bolls of bear, (rather more than a fourth of the then
tent of the lands,) ' to be mete and measured with the common
'< priekraete of this nation ;' and the Earl of Moray, ' as if the
' said charter wafe already made and expede,'-— c binds and obliges
* himself ' to warrant the vassal from all bygone duties imd taxa-
tions, &c. up to Whitsunday 1652 ; while, on the other hatid^ the
vassal binds himself ' to free and relieve the said noble Ear! and
* his foresaids of all taxations, impositions, contributions, cess,
* monthly maintenance, teind duties, minister's stipend; and all
' other burdens imposed or that shall happen to be imposed upon
' the said lands of Balnagieth, teinds thereof, and pertinents of
' the same, above written, after the said term of Whitsunday last
'.bypast, m this instant year of God above written^ and in all
* time coming* thereafter,— the said noble Earl and his foresaids
< abrays paying and relieving the said Patrick Tnlioch and his
4 foresaids of the: fourth part of all eess* maintenance* and all
'•public impositions imposed or to be imposed on th* said lands
c and pertinents of the same, according to the rate of the fourth
' part of the valued rent of die same of the instant crop and year
( of God 1652, and in all time coming thereafter.' Twenty days
dfter the date of this contract a feu-charter was granted by the
Earl, bearing to be for * fulfilling to us and our foresaids the
4 haill remanent heads, articles, clauses, and conditions mentioned
* and contained in the said contract of feu.' This charter was in
the same terms as the contract, with this exception, that the
qualification of the vassal's obligation of relief, in so far as
COURT OF SESSION. 385
garded the superior's paying one fourth of the public burdens,
was omitted, and a right of pasturage, not expressly mentioned
in the contract, was specially granted in the charter. But other*
wise the same conditions, fcc, were inserted in both ; and in par-
ticular the feu-duty, as set forth in the charter, was stipulated * to
' be mete and measured with the common prickmete of this na-
* Don.' On this charter infeftment was taken, and the subsequent
investitures were renewed in the same termi.
It did not appear that the superior had ever been called upon
to relieve the vassal of a fourth part of the public burdens, in
terms of the qualification in the feu-contract ; and the feu-duty,
instead of being paid by the * prickmete of this nation/ which ia
the Linlithgow boll, had always (so far back at least as there was
any evidence) been paid according to the boll of the district,
which was considerably larger than the Ltnlithg9w boll.
The estate of Balnagieth having passed into the hands of
Leslie the purauer, he in 1828 raised the present action to have
it found that Lord Moray, the descendant of the granter of the
feu-contract, was bound to relieve bhn of the pablio burdens af-
fecting the property to the .extent of one fourth, and that in fu-
ture the feu-duty should be payable according to the Linlithgow
measure ; and concluding also for repetition of the fourth part of
the burdens paid during the last forty years, and of the excess of
Jra-duty paid during the same period.
Agamst this action Lord Moray pleaded in defence,
1. That under the circumstances of the case, the charter must
be held to be the regulating deed, and the measure of the rights
of the parties, the claim of relief provided for in the feu-contract
having subsequently been departed from by the feuar.
S. That at all events this claim of relief, being a mere personal
obligation, has fallen by the negative prescription, as it never has
been operated on at all, or at least not for forty years; and,
3» That the superior was defended from any claim of repeti-
tion for the exoess of feu-duty on the ground of bona fides.
In opposition to these defences, it was contended for the pur*
1- . That, at the period when this feu-contract was entered into*
it was the usual practice not to insert in the charter (the object cf
wfeksh was merely the conveyance of the feudal right) all the con-
ditions contained in the contract ; and that, taking both deeds to-
getber, there was in reality no reason to believe that the vassal
hod abandoned this stipulation in his favour.
ft. That the obligation of relief in question, being one which be-
came prestable yearly, and which was not dependent on or aeoe*
236 CASES DECIDED IN THE
sory to any principal obligation subject to prescription, couid not
be lost by its not having been enforced for more than forty
years ; and that the case was analagous to that of the Earl of Cas-
sillis v. Ross's Creditors, and several others decided in the same
way.
S. That, altogether independently of the obligation in the fell'
contract, a superior who stipulated, as in the present case, for a
feu-duty which was in fact a fair rent for the lands at the time,
was bound at common law to relieve the vassal of a proportion
of the public burdens effeiriug to his beneficial interest in the pro-
perty, and that such obligation could not be lost by prescription,
seeing it arose from the very titles on which the feu had always
been possessed ; and,
4. That as to the claim for repetition of the excess of feu-duty,
bona fides was no defence against a condictio indebiti, which the
claim really was, as otherwise there never could be repetition de-
manded of any debt paid and received bona fide, which was not
the case in point of law ; and further, that the * prickmete' being
described in the public statutes,. the superior could not plead ig-
norance of the size of the measure set forth in the. titles.
To this it was answered,
1. That the leaving out in the charter the qualification of the
vassal's obligation of relief contained in the contract was ciearjy.
an abandonment of that qualification, more especially when joined
to the circumstance of no demand having ever been made on it,
so far as appeared, and of the charter conveying a right of pas-
turage not contained in the contract, which might have been a
consideration for giving up this obligation.
2. That the distinction between those annual prestations which
were accessory to a principal obligation, and those which were
not so, was not well founded, — the only proper exception to the.
operation, of the negative prescription being as to those annual
prestations appearing on the face of the titles, against which pre-
scription could not run ; but, besides, that the obligation here was.
not of the nature of prestations independent of a principal obli-
gation ; and in regard to the case of Cassillis, that the ground of
decision inserted in the interlocutor entirely took away its appli-
cation to the present case.
. 8. That the obligation here contended for would be palpably
unjust, as that share of the produce of a fejj which might be a
fair rent two centuries ago, would bear no proportion to the present
value and consequent . extent of public burdens, and that there
was no authority in our law for. maintaining the existence. of finch
a burden; and,
COURT OF SB6SION. S87
4. That neither the vassal nor the superior had been aware, in
point of fact, that the * prickmete' was a different measure from
that bj which the feu-duties were paid— none of the acts of Par-
liament describing that measure having been printed till within
these few years ; and that these, therefore, were fruges bona fide
consumptif of which repetition could not be demanded.
The Lord Ordinary, for reasons explained in a note, found,
' 1. That the noble defender is not bound to relieve the pursuer
c of a fourth part of the public burdens affecting the lands held
1 by the pursuer of the defender ; and assoilzies the defender from
4 that claim. 2. That the pursuer is bound by his investiture to
' pay to the noble defender a feu-duty of 24 bolls of sufficient
' bear by the prickmete of the nation ; — that this mete means the
' Linlithgow boll, and consequently, that in time to come, after
< Candlemas last 1824, the pursuer is only bound to pay the said
c number of bolls measured by the standard Linlithgow boll ; but
( that, in consequence erf the bona fides of the defender and his
* predecessors receiving payment by the Elgin measure for greatly
' above 100 years, he is not liable to repay or account to the pur-
* suer for the difference between the two measures in time past,
' and assoilzies the defender from that claim/
To this interlocutor the Court (June 28. 1825) adhered ; and,
on advising a reclaiming petition, with answers, again adhered.
The Lord Ordinary observed in a note :—
The Lord Ordinary heard the counsel for the parties on the 28th
instant, since which he has attentively considered what was then
argued) and has consulted the authorities to which they made refer-
ence. The following results from his deliberations.
The first point was, .Whether the charter 24th December 1652,
granted in implement of the feu-contract 4th December of the same
year, altered the terms of that contract? On looking into the case
of the Duke of Buocleuch against the Officero of State, 1st February
1770, it is thereby proved that the stipulation for payment of feu-
duty, contained in a charter from the superior to the vassal, and that
investiture having been renewed for above the prescriptive period,
constitutes an obligation upon the vassal to pay these feu-duties,
although in fact they bad never been paid from the date of the in-
vestiture. The reasons of exemption from payment of theje feu-
duties were somewhat, though not precisely, similar to the present
; yet, after the most mature consideration, the Court found the
liable for the feu-duties. Now, in this case, the charter 24th
December 1652 by the Earl of Moray was granted to the pursuer's
predecessors, under the burden of a feu-duty of 24 bolls sufficient
bear, to be * mete and measured by the common prickmete of this
vox., v. t
288 CASES DECIDED IN THE
< ration,' fcfc, without any stipulated deduction therefrom ; and it is
not denied, nay it is admitted, that die feu-duty has been paid ever
since by the measure of the county of Elgin without deduction.
The feu-duty, therefore, is undoubtedly due.
The next step then is, Whether this charter and usage of payment
has secured the continuation thereof tQ the noble defender ? By the
feu-contract 4th December 1652, Patrick Tullocb, one of the par-
ties, and author of the pursuer's predecessors, bound himself to pay
all public burdens, specified in an extensive enumeration of them,
after Whitsunday 1652, « the said noble Earl always paying and re-
' lieving the said Patrick Tullocb and his foresaids of the fourth of
' all cess, maintenance, and of all public impositions whatsoever, im-
' posed or to be imposed on the said lands and pertinents of the
' same, according to the rate of the fourth part of the valued nent of
' the same, of the instant crop and year of God 1652, aodin ail time
' coming thereafter/ No such obligation as this is to be found m
the charter following on and in implement of this feu-contact, and
no auch relief or claim of it has been given or made since the date
of the charter. But it was ingeniously pleaded by the pursuer, that
the intention of the parties was to make this only a personal claim
against the Earl of Moray and his heirs, and as it is an obligation
for an yearly payment of a fourth part of the public burdens, i{ was
pleaded that it cannot be cut off by the negative prescription, more
than the right to feu-duties or teinds can be lost by prescription.
The Lord Ordinary, however, cannot assent to this doctrine. The
reason why feu-duties and teinds do not prescribe, in bo far as re-
spects the right of demanding them, is, that no man can prescribe a
right in opposition to the title under which he holds a subject.
Teinds are a burden on lands by the public law of the country, feu-
duties under the charter by which a man holds ms lands. Each
year's teinds or feu-duty becomes a debt, and is cut off by the lapse
of forty years ; but the right itself under which teinds or feu-duty is
due remains. Here the right under which the pursuer holds his
lands is the charter and infeftment, under which he is bound to pay
bis feu-duty, while the obligation under which he claims deduction
of a fourth is a mere personal stipulation in a separate deed. The
right of exacting the full feu-duty without deduction is secured by
positive prescription, arising from the right itself, and possession of
near 200 years, while the personal stipulation is cut off by the nega-
tive prescription, built too on the presumption that the stipulation
was departed from at the time that the charter was granted. The
case of the Earl of Cassijlis against the Creditors of Hugh Roes,
3d February 1796, Mor. p. 10756, is very illustrative ef the pre-
sent. The circumstances, indeed, are very nearly similar, with this
exception, that feu-duty was never once paid. Hie superior stipu-
lated a feu-duty of 52 met ks yearly ; but in order to relieve the vas-
sal, he obliged himself so grant mm a right of annual rent out of bis
COURT OF SESSION. 289
lands to the mm amount. In tbe efavter the fou-duiy of 52 merks
was stipulated, without notice of the discharge by means of the right
of annual rent, and no right of annual rent, however, was granted.
Una waa in 1614, from which period down to 1787 no feu-duty was
paid. Ik this last-mentioned year, Mr. Ross* estate having been in
the hands of creditors, the feu-duty waa demanded, and the Court
refused to find it payable* But on what ground was this ? On the
ground solely that not one farthing of the feu-duty had ever been
paid, whereby the personal obligation was preserved in force. But
if die aeu-duty had been paid for above 100 yean, as in this case,
the only reason of the judgment was removed.
The last point is the moaning of the words, ' the common prick-
< mete of the nation,' by which the 24 bolls of bear are to be paid.
The Lord Ordinary is satisfied that these words mean the Linlith-
gow boll, and thinks that this is completely established by the act of
Pftifcnment, printed 1567, c 115, and by the proceeding quoted in
the statutes edited by Mr. Thomson, Vol. V. p. 425, where this
measure is mentioned by the Earl of Galloway in a complaint to the
King and Parliament against the burgh of Wigton in 1641. The
consequence of this appears to be, that the pursuer can be liable only
for 24 bolls of bear by the Linlithgow measure in time to come.
Put the case, that his charter stipulated a feu-duty of £10 sterling
yearly, and that he had paid £12, no length of payment of this erro-
neous feu-duty could make it exigible after the error is discovered.
In the aaase way, if it be clear that payment by the prickmete of
the nation means die Linlithgow measure, (which the Lord Ordinary
thinks H does,) no length of the time during which payment has been
made by a larger aseasure can my an obligation upon the pursuer to
continue paying by the larger measure. The Lord Ordinary, how-
ever, is elearry of opinion that the bona fides of receiving payment
far 170 yean past is a good defence against a claim for repayment
of the bygones prior to Candlemas 1824*
Lows Glkklei* — It is not necessary to pay much attention to the dif-
ference between the feu-charter and the contract. The burden on
Lord Moray is but an annexed qualification of the obligation on the
feuar to relieve his Lordship, providing that to the extent of one
fourth Lord Moray is not to claim relief, or that he is only to be entitled
to relief of three fourths of the public burdens. At that period
Crown vassals alone were liable in such burdens ; and the cess, such
as it exists at present, was unknown till 1657. The whole burdens
being thus by the contract thrown on the vassal, the relief came to
be by the superior to the extent of three fourths ; but the clause is
quite inexplicable as it stands to present circumstances, and it plainly
must be understood that the object of it has been accomplished
otherwise. There is no sense, therefore, in applying the doctrine of
prescription, and saying that each year's burden must run a sepa-
rate course ; and as to the daim of repetition, the plea of bona fides
t2
890 CASES DECIDED IN THE
completely applies. I therefore think the interlocutor right on both
points.
Lord Robertson,— (who was on the Bench at the first tdrising.)—
I also think the interlocutor right. The feu-contract was superseded
by the charter, and the obligation in the former was never insisted
on. My only difficulty was as to the surplus feu-duty. It may be
said that the charter being the measure of the right, Lord Moray
could not bona fide take more ; but then the local measures had al-
ways* been universally used, notwithstanding the act of Parliament ;
and I therefore think that Lord Moray must be held to have been
in bond fide.
Lord Pitm illy.— I am of the same opinion. Even if the matter had
rested on the feu-contract, I should have thought the interlocutor
right ; but the terms of the charter granted twenty days afterwards
puts the question beyond doubt. It is the charter, and not the eon-
tract, which must regulate the rights of parties here; so that, if there
had been no prescription at all, the superior would have been free of
his obligation of relief; but his right is certainly fortified by pre-
scription.
Lord Alloway— I am also for adhering ; but had there been no pre-
scription, my opinion would have been different.
Lord Justice-Clerk.— When this reclaiming petition was given in,
I wished to look into the case of Gartshore v. Fleming, which at
first sight might appear to be an authority in favour of the pursuer.
But there is this marked distinction, that in that case there was no con-
trary payment; while here, though there was always an interest in the
pursuer's predecessors to insist on the obligation in the contract, they
nevertheless paid the whole burdens during all the long period which
has elapsed* Lord Glenlee's observations as to the nature of the
cess at the date of the contract are very important, and lead to the
conclusion, that the parties intended in the charter to settle matters
on a different footing, which is the more probable, as a right of pas-
turage was .conferred in the charter not contained in the contract. .
Pursuer'* Authorities.— (2.)— 3. Erek. 7. 13; Blair, Feb. 7. 1672, (11236); E. of
Cassillia, Feb. 3. 1798, (10756) ; Gartshore v. Fleming, Feb. 4. 1813, (not re.
ported, noticed in papers of case ne*t quoted) ; Low r. Bethune, Dec. 2. J 820,
(F. C.)— (3.>— Feuars of Kinross, Dec. 7. 1693, (13071) ; Treasurer of Edin-
burgh, Feb. 25. 1696, (4188); Afistruther, Dec 9. 1779, (10713); Mill, Feb. 7.
1794, (l07l5.)-<4.)— 3. M'Kenaie's Inst. 1 ; 7. Wallace's Pr. 8. 51 ; L. 26. § 5.
D. de Cond. Indeb. ; 1587, c. 15.
Defender's Authorities.— (1.)— M'Lachlan, May 14. 1823, (ante, Vol. II. No. »1.)
—(2.)— 1469, c. 28; 1617, c. 12 ; 2. Stair, 12. 16 ; 17- Karnes' Elucid. p. 251 ;
2. Bank. 12. 12. and 18. 19; Beadmen of Magdalene Chapel, June 30. 1671*
(11148); Countess of Rothes, Jan. 1. 1685, (11255); Stewart, July 6. 17ll'
(10722) ; Graham, Feb. 7. 1735, (10745) ; Tarsappie, March 4. 1685, (10770) \
Magistrates of Linlithgow, June 21. 1822, (ante, Vol. I. No. 564.)— (&)— Duke of
Montrose, July 13. 1711, (13073.)
T. Innks, W. S.«-J, Wauchopb, W. S«— Agent*
COURT OP SESSION. 5891
D. Allan, Pursuer. — Pitt Dundas. No. 168.
His Creditors, Defenders. — Carlisle.
O«fto^— Held not necessary, in peculiar circumstances, for the pursuer of a cessio,
against whom a writ of extent had issued, to call the Officers of the Crown as de-
afencten.
Allan, who had been a commissary-general in New South *d>. & 1 W.
Wales, brought a process of cessio, which he was repeatedly pre- 1st Dmsnm.
vented from pleading, by its being objected that all the creditors
had not been called. After he had obviated this by calling them,
it was objected, that as he was indebted to the Crown, and as a
writ of extent had issued, the Officers of State ought to have been
made parties. The Court, in the particular circumstances of the
repelled the objection.
The Judges seemed to think the objection attended with much diffi-
culty, and were at first disposed to sustain it ; but considering that
the pursuer had not been justly treated by the mode in which his
creditors had conducted their opposition, they allowed him to plead
E. Gorman, Suspender.— -4. M*NeiIL No. 169.
J. W. Hedderwick, Charger. — W. Bell
MedUaHme Fugm Warrant.— Held not a sufficient ground for liberating a party
incarcerated on a meditatione fugn warrant, till he should find caution jadicio sisti
in any action to be brought against him within six months, that the creditor had
delayed to do so for four months ; but having alleged that he was merely going
out of the country on a periodical journey in the course of his business, a re-
serration made to him to apply to the Judge incarcerator for a re-examination
and investigation as to that matter.
Gorman, having been incarcerated on a meditatione fugs war- Feb. 3. 1837.
jrant, granted by the Sheriff of Lanarkshire, till he should find in~£^l09m
-caution judicio sisti in any action to be brought by Hedderwick Bill-Chamber.
against him for payment of a debt of about £S9 presented a bill Lord Craigie.
of suspension and liberation, in which he stated that he was a
spirit-merchant in Glasgow, and also a dealer in old clothes, in
which latter occupation he had occasion to go frequently to Ire-
land; that when apprehended he was proceeding there in the course
of his business, and not to avoid payment of his debt ; that from
the hurried manner in which his declaration had been taken, he
had not been allowed to explain these circumstances; that al-
though nearly four months had elapsed, Hedderwick had only
99fe CASES DECIDED IN THE
recently raised his action, which he (Gorman) did not intend to
resist; that if Hedderwick had taken his decree at an earlier period,
and detained him on civil diligence, Gorman might have got his
liberty by a process of cessio, which at present he could not ac-
complish; and therefore, that, in the whole circumstances, he
ought to be liberated.
To this it was answered, That it was proved by Hedderwick's
oath, and the declaration of Gorman, that there were sufficient
reasons for requiring him to find caution, and that as six months
had not elapsed, there was no ground for relieving him from
prison, if he did not think fit to find caution. Lord Craigie
passed the bill simpliciter,— * in respect of the long delay on the
* part of the chargers to commence their action against the sus-
* pender, and the trivial extent of the debt, which was generally
( admitted by the suspender ; and also that the complainer by
* the delay has been for some months prevented from obtaining
' his liberty in consequence of a process of cessio bonorum.'
Hedderwick having reclaimed, the Court altered, and refused
the bill, reserving to Gorman to apply to the Sheriff for a re-ex-
amination.
Lord Balgray, — I see no grounds on which, consistently with law,
we can interfere with the rights of this creditor. If Gorman did
not sufficiently explain himself in his re-examination before the Sheriff,
he has himself alone to blame, but he may apply to be re-examined.
Lord Gillies. — We cannot pass this bfll, except on the footing that
the examination has not been properly taken. We have, however, no
evidence of that. If Gorman was going merely on a periodical joufr-
ney in the course of his business, I do not think that would have
been a ground for a warrant as in meditatione fugse. He may apply
to the Sheriff to be re-examined on that subject, but in hoc statu we
cannot interfere.
Lord Craigie.— In passing this bill, I went on the ground tint the
exacting of caution is not required by statute, but is an equitable
interference of the law on behalf of the creditor, and that, aa it ap-
peared to me that the right had been abused by this party, we
bound in equity to give redress.
T. Ker, W. S. — J. Malcolm,— Agents.
COUBT OF SESSION.
293
2d Division.
F.
A. Christie, Petitioner.— Maird. No. 170.
NMU Oficinm Fmctor.— Court declined to appoint a factor to execute the pur-
poses of a trust, in room of a trustee who had become insolvent, on the applica-
tion of the truster alone ; but did so on the concurrence of a party beneficially
interested under the trust having been obtained.
The petitioner Christie, in 1820, executed a conveyance of cer- Feb. 3. 1827.
tain heritable property to Pattison and two others, in trust, for
the purposes, 1. Of paying his lawful debts ; 2. Of paying to him
the rents for his liferent use allenarly ; and, 3. Of selling the sub-
jects after his death, and paying certain provisions, and dividing
the remainder among the residuary legatees set forth in the deed.
Pattison was declared to be the sole trustee for executing the
purposes of the trust during Christie's life, and he, with the two
others, were regularly infeft under the trust-deed ; but on his
having become insolvent, and having executed a trust-disposition
of his own estate, Christie presented a petition to the Court, pray-
ing to have a factor appointed to execute the purposes of the
trust in his place. This the Court declined to grant on the appli-
cation of Christie alone ; but one of the residuary legatees having
afterwards concurred in it, their Lordships, in respect thereof,
granted the prayer of the petition.
J. Liddle, Agent
P. Borthwick, Pursuer. — Sd.-Gcn. Hope — H. Bruce. No, 171.
R. W bight and Others, Defenders. — D. qfF. Moncreiff—
Buchanan.
Bankrupt Stat. 1606, 0. 5.— -A partner and manager of a company having dis-
counted Mils belonging to the company for its behoof; and being indebted private
nomine to the company in a sum which he ought to have paid or entered to
that effect in his account with the company, and having retired the bills within
60 days of his bankruptcy as an individual, whereby his debt to the company waa
extinguished, and of which he made an entry in their books— Held, that as it was
his duty prior to the 60 days to have paid the debt, whereby funds belonging to
the company were in his bands as manager sufficient to retire the bills, the
transaction was not reducible on the act 1696, c. 5.
In the month of May 1815, a company was formed under the Feb. 6. 1827.
firm of Saunders and Company, wood-merchants in Leith, of l8T DlvIBIOW#
which the partners were John Saunders junior, Robert Wright, Lor(j Eidin.
William Traquair, Robert Dodson, and John Heiton. Saunders • H.
was a partner ta the extent of one half of the whole, and had the
V *
2&4 CASES DECIDED IN THE
exclusive administration of the funds as manager of the company.
In the course of their trade the company became creditors of three
separate parties, Buck, Lamb, and Findlay, to the extent of £S60
17s. 8d., on each of whom they drew bills for the amount of their
respective debts, which were accepted, and were payable on the
27th and 29th December 1820.
In the month of April of that year the company was privately
dissolved, and in October this was announced to the public. The
winding up of its affairs was intrusted to Saunders, who, in the
course of doing so, discounted the above bills in name of the
company, and received the proceeds, which he entered in the
company books. When these bills were about to fall due in
December, and it was known that they would not be paid by the
acceptors, they were retired by Saunders.
At this time Saunders stood indebted to the company in this
manner. He had purchased from them, in the month of April,
timber and utensils to the amount of upwards of .£800, and was
otherwise accountable few funds belonging to the company, to an
extent which, including the above sum, made him their debtor
for £896. Accordingly in his private books he had debited him-
self with that sum ; and when he retired the above bills, amount-
ing to -0360: 17: S, he placed that payment to his own credit,
and made similar entries in the books of the company. The effect
of this was to extinguish pro tanto the sum of £396 for which he
was accountable to the company. His estates were sequestrated
on the 15th of January 1821, being 16 days from the date of re-
tiring the bills ; and Borthwick, having been appointed trustee,
brought an action of reduction and repetition on the .acts 1621,
c. 18, and 1696, c. 5, and on the common law, against the de-
fenders, the other partners of the company.
% In support of this action he maintained,
1. That as the bills had been retired by Saunders out of his
own private funds when in bankrupt circumstances, for behalf of
his partners, who were conjunct and confident persons, without
any just or necessary cause, the payments made by him were
struck at by the above statutes.
2. That as the bills were due to, and not by the company, and
as his name did not appear upon them as a private individual,
and as they had been retired by him in that capacity, he had ac-
quired right to them, and therefore he was not entitled to deliver
over the bills to his partners, but ought to have retained them
for behoof of his private creditors, in order to be recovered from
the acceptors or the company as the drawers; and,
COURT OP SESSION. 29&
' 3. That the entry in his books for behoof of that company
having been made within 60 days of his bankruptcy, was a
fraudulent attempt to give a preference to his partners.
To this it was answered,
1. That it was the duty of Saunders, as manager of the company,
and by whom the bills were discounted, to retire them when they
fell due; and as at this time he was possessed of funds which be-
longed to the company, and for which he himself was account-
able, it must be held that he had retired the bills out of these
funds, and not out of his own private estate ; and,
2. That as, at all events, it was a payment in cash, the transac-
tion was not liable to be set aside.
The Lord Ordinary decerned in terms of the libel ; and the de-
fenders having reclaimed, the Court appointed them, before an-
swer, ' to lodge a condescendence, stating what sum of the com-
* pany's funds they allege to have been in the hands of the said
* John Saunders at the time of retiring the bills in question, and
' of what such funds consisted ;' and thereafter remitted to an ac-
countant to examine the books of the concern, and report upon
the points in dispute. A report was accordingly given in, from
which it appeared, 1st, That immediately after the dissolution
in April, Saunders had become indebted to the company, or ac-
countable to them, for the above sum of £396, which ought to
have been paid by him, but that he had never made any entry
as manager of the company in his cash-book of his having paid
that sum till the 80th of December 1820 ; and, 2d, That if he
should be held to have paid that sum when due, he had funds
in his hands belonging to the company sufficient to retire the
bills.
On advising this report, the Court altered, and assoilzied the
defenders; but found no expenses due.
Lord Balgray.— When this case first came before us, I was impressed
with the idea that tijis was a collusive proceeding among the part*
ners to obtain a preference; but the report shows that this was not
the fact. As matters are now explained, I cannot see any legal
grounds on which to reduce this transaction. Saunders was the
manager or trustee for winding up the affairs of the company, and it
was his duty to take up these hills by means of the funds which were
in his hands belonging to the company. The question therefore
comes to he, whether, at the period of retiring them, he was possessed
of funds belonging to the company? It appears that in bis private
capacity he was debtor for sums to the company which he ought to
hate paid prior to the period of 60 days from bis bankruptcy; and it
996 CASES DECIDED IN THE
was therefore his duty, as manager of the company, to have recovered
that sum; or, in other words, to have entered it as haying been then
paid by him to the company. If he bad done so, there would hare
been no room for this question ; and I apprehend that we are bound
to hold that although he did not make that entry, yet that he thence-
forth held that sum in his capacity of manager of the company. If
so, then he had sufficient funds in his hands when the bills fell due
out of which to retire them, and it was his duty to do so. As, there-
fore, there is no offer to prove that there was an actual fraud, we
must assoilzie the defenders.
Lord Cbaigie. — This is a very nice case, and I was disposed to ad-
here to the judgment of the Lord Ordinary ; but my opinion has
been a good deal affected by that delivered by Lord Balgray.
Lord Gillies.-— It is admitted that Saunders was the manager and
cashier of the company ; and it is also admitted that he made pur-
chases, the price of which was payable prior to the 60 days. If it
had been due by a third party! he was bound forthwith to have re-
covered payment ; and as it was owing by himself, we must hold
that he performed his duty. According to the view of the account-
ant, all that was requisite in order to this was, that he should have
made an entry in the books, in which case he states that there
could be no objection to the transaction. Saunders, however, did
not do so, and therefore the whole case turns upon the effect of hie
omission to make that entry. But it was his duty to have made it,
and he must be considered to have held the funds as from that period
in his character of manager. If so, there is no longer any ques-
tion here, because it is admitted that he was entitled to retire these
bills out of the funds of the company.
Loud President. — I can easily understand, that if the cashier of a
bank or a company be possessed of funds in the company chest, or
which have actually come into their possession, his bankruptcy will
, not prevent him from applying them to the payment of their debts ; but
my difficulty is this : — Saunders was indebted to the company in
his private capacity, and on his bankruptcy they could only rank as
common creditors. He did not purchase the goods as manager of
the company; he sold them no doubt in that capacity in winding up
their affairs, but he purchased them as a private individual. He
could not he both purchaser and seller; he was therefore just an
ordinary private debtor to the company. Now, he did not pay his
debt, or take any measures in relation to doing so till within the 60
days, when he accomplished it in the manner set forth in the plead-
ings. It is said, however, that be ought to have made the entry
prior to that period, and therefore he mua> be held to have 4»n* so ;
but I can make no distinction, between an entry and payment. If
he had paid the debt prior to ^be 60 days, these could bai» been
COURT OF SESSION. SOT
no objection; but it is became he did to- within the 60 days thai
it is struck at by the statute. On the same principle, the entry
that period renders the transaction liable to be set aside.
Pttrnter** Authorities.— Z. Bell, 225. 256; Barbour, May 30. 1823, (ante, Vol. II.
No. 335) ; Blaikie, March 1. 1798, (887.)
Defender J Authorities.— 2. Bell, 209. and Cases there, and 225.
W. Cook, W. S*^J. Psdie, W. S^Agents.
J. Sharp, Pursuer.— Skene. No. 172.
D. ITGowan, Defender. — D. qfF. Moncreiff—Brownlee.
This was a special case, in which the Lord Ordinary and the Feb. 6. 1827.
Court decerned against M'Gowan. 1st Division.
Lord Eldin.
T. Baillie,— W. Hunt, W. S,— Agents. D.
Mrs. Lindsay or M'Gowan and her Son. — S6l.-Gen. Hope — No. 173.
M'NeiU.
Sir R. Henderson and Others, (Anstruther's Trustees.) —
Jameson — Walker — MakgiU.
^tf^aey^-CircuniBUaees under which it was held that two legacies of the same
amount, in separate deeds, in favour of the same party, were both due.
The late John Anstruther, Esq. of Arditt, executed, on the Feb. 6. 1827*
Slst of June 1805, a mortis caus& bond, whereby he provided in l8T Division,
favour of his natural daughter, Mrs. Lindsay or M'Gowan, an Lord Meadow-
annuity of «£85, and a sum of £500 to her children. On theSSd b^k*
May 1807 he added a codicil to the bond, by which he gave to
her a further annuity of £50, declaring that it was ' in addition
' to the above provision of £96 per annum.' In 1812 he executed
a trust-disposition and deed of settlement in favour of Sir Robert
Henderson and others, by which he conveyed to them his estate
of Winkston and others in Peebles-shire, and bis whole other
estates and effects, (with the exception of that of Arditt, which
lie disponed by a separate mortis eaus& deed to his mother,) /or
payment of his debts, and of various legacies and provisions. By
this deed be, inter alia, provided that the trustees should pay to
Mrs. M'Gowan a legacy of 4100 to herself, jPSOO to her bus-
land, and further an annuity to her of jPIOO, and should secure
tiie principal sum of £8000 to her children ; and he then de-
clared, that * in the event of the above provisions taking effect in
« her favour, and in favour of her children, by this being an effec-
* tual deed, that it is in full of and in place of the provisions fotf-
298 CASES DECIDED IN THE
* merly made by me in- her favour, by bond of annuity dated the
c 21st day of June 1805, and codicil in my own handwriting
« thereto annexed, dated the 22d day of May 1807 years, which
c bond and codicil in such case shall be of no effect.* In this
deed there was no prohibition against the annuity being assign-
able, and it was declared in relation to the sum of J&2000, that
it should be divisible among the children in such proportions as
Mrs. M'Gowan should appoint by a writing under her hand ; fail-
ing ^rhich, to be divided among them at the first term of Whit-
sunday or Martinmas after her death.-
In 1814, after his mother's death, Mr. Anstruther cancelled
the disposition of the estate of Arditt in her favour by deleting
his name, and at the same time struck out the name of one of the
trustees from the trust-deed by scoring it with a pen. There-
after, in 1818, and while the trust-deed was in his own posses-
sion, he executed a mortis causfi, bond for an annuity of «£100 in
favour of Mrs. M'Gowan, and of the principal sum of JP2000 in
favour of her children. The obligatory clause was in these terms :
— ' I bind and oblige myself, my heirs, executors, and successors
* whomsoever, without regard to their order of priority, and with-
' out the benefit of discussing one heir for the relief of another,
' to make payment,1 &c. In regard to the annuity, he provided
that it should * not be assignable or transferable by her to any
' person whatever for any time, however short or long, and that
< assignees, legal or voluntary, shall be, as they are hereby ex-
* pressly secluded/ In regard to the i?2000, it was directed to
be pud to the children < at the first term of Whitsunday or Mar-
* tinmas after their mother s death, they having arrived at the
* years of majority, and if the child or children, or any of them,
' shall not have arrived at that age at the time of their mother's
' death, then the term of payment to be at the first term of WhAt-
' sunday or Martinmas after they attain that age respectively ;'
but declaring, that ' if anypf the children shall decease before
* the term of payment, leaving lawful issue, such issue shall suc-
' ceed to the parent's share ;' and ' in the event of the child or
* children dying in minority, without lawful issue of their body
' or bodies, the performance of these presents shall not be exi-
' gible by their heirs, executors, or assignees, but the. said sum
' shall remain part of my estate, and belong to my own heirs
* and assignees, without prejudice, nevertheless, to the child or
* children's right to the annual rent of said sum which fthall have
* become due during the lifetime of the said child or children.'
At the same lime Mr. Anstruther executed a bond for £5QQ
in favour of her husband John M'Gowan, who, in 1819, made »
COURT OF SESSION. 299
mortis causa disposition of his estate of Winkston in favour of
Mrs. ATGowan in liferent,, and her children in fee, declaring
* that these presents shall not infringe, derogate from, or be coo-
* strued as haying come in place of any obligation or provision I
* have already made in favour of the said Rachel Lindsay, and
* that my debts and obligations of every description shall not
* affect the foresaid lands and others, or these presents, but shall
* be paid and satisfied out of my other lands and estates.' He
died a few months thereafter, having previously delivered the
trust-deed 'of 1812 to Mrs. M'Gowan. He left no lawful issue,
and it appeared that his funds had been gradually accumulating
from 1805, and that they amounted at his death to upwards of
.£80,000.
Thereafter an action was brought by the heirs at law of Mr.
Anstruther for setting aside the trust-deed of 1812, on the ground,
inter alia, of its being vitiated by the name of one of the trustees
being obliterated ; but the Court sustained the deed as valid and
effectual. (See ante, Vol. I. No. 575.)
A multiplepcnnding having been then brought by the trustees,
Mrs. M'Gowan and her husband claimed both the annuity of
£100 and legacies in the trust-deed of 1812, and those in
the bond of 1818, and her son and only child also claimed
the two provisions of £9000 contained in these respective deeds.
On the other hand, the trustees maintained that the provisions
in the bond of 1818 superseded those in the trust-deed of 1812 ;
so that the question came to be, Whether only one or both of
these provisions were due ?
In support of their claim, Mrs. M'Gowan and her son contended,
1. That as the provisions were contained in separate deeds, and
as the one was not declared to be in place of the other, they were
both due.
2. That as the provisions contained in the deed 1812 consisted
both of a legacy and of an annuity, against transferring the latter
of which there was no prohibition, and as in the bond of 1818 there
was no legacy provided, and the annuity was declared not to be
transferable, and as the sum of JP2000 granted by the former of
these deeds was payable at a different period, and might go to
different parties from that conveyed by the bond, the provisions
must be held to be different in quantity and quality, and there-
fore both due ; and,
S. That as Mr. Anstruther'* fortune had been gradually accu-
mulating, and as his affection for Mrs. M'Gowan and her children
was evidently increasing, it was to be presumed that he intended
all those provisions to be payable to them, which he had not de-
clared should be in satisfaction of others.
600
CASES DECIDED IN THE
On the part of the trustees it was pleaded,
1. That the question was to be decided on the same principles,
and by the same rules, upon which provisions by a father to his
children are governed ; and that in these cases a provision, not
specially declared to be additional, is held to be in satisfaction of
prior provisions.
2. That the whole circumstances, and particularly the convey-
ance of Winkston, (which was part of the fund intended for pay*
merit of the provisions in the deed 1812,) proved that Mr. An-
gtruther did not intend that they should both be exigible ; and,
8. That even if the provisions could be regarded as legacies,
there were no sufficient grounds for holding that both were due.
The Court, on the report of the Lord Ordinary, found ' that
' the legacies and provisions -in favour of Mrs. Rachel Lindsay or
' M'Gowan, and John M'Gowan her husband, and the children
* of the said Rachel Lindsay or M'Gowan, contained in the trust-
« deed of 3d August 1812, are not superseded or affected by the
* bond in their favour of date 81st March 1818, and that they
' are entitled to the benefit of the sums and previsions contained
* in both deeds, and to be ranked- accordingly : Repelled the ob-
jections stated by the raisers of the multiplepoinding relative to
* the provisions in favour of the said defenders, and decerned ;
' but found no expenses due.'
The Judges were of opinion, that as the provisions had been left by
separate deeds, and as they were different both in quantity and qua-
lity, and as the funds of the testator were gradually accumulating,
and his affection for his natural daughter and her family increasing,
and as there was no predilection shown for his heirs at law, and no
declaration that the provisions of 1818 should be in satisfaction of
those contained in the deed 1812, (in which he bad inserted a de-
claration as to those previously granted,) and he had conveyed tile
• estate of Winkston under a declaration that it should be in addition
to all his former provisions, it must be presumed that he meant both
to be payable.
MPGowan's Authorities.— \. Stair, 8. 2 ; 4. Stair, 45. 17 ; 3. Ersk. 3. 93 ; 2. Vin.
20; Voet. 1. 30. and 34 ; ]. Roper, 491; Toller, 396; 4. Bacon A b. 361 ; 2. H.
Blacks. 213 ; Stirling, June 20. 1704, ( 1 1442) ; M'fatyre, March 1 . 1821, (P. C.) ;
Elliot, Feb. 27. 1823, (ante, Vol. II. No. 226) ; Clark, May 16. 1823, {ante.
Vol. II. No. 292.)
Trustees' Authorities.— Wallace, Nov. 13. 1624, (11440) ; Burnett, Feb. 24. 1709,
(11467); Belches, Dec. 22. 1752, (11361); 4. Stair, 42. 21; 1. Bank. 2. 61 ;
a^rsk. 9. 14; Toller, 334.
J. Young, W. S— J. Hekiot, W. S.— Agents.
COURT OF SESSION. 301
Mrs. FftASER, Pursuer.— Skene. No. 174.
N. F. Fbasxe, Defender.— P. o/F. Mmcretfi
Title to Pursue — Interdiction. — Circumstance! under which it was held, —
1.— That the tutor of a pupil was entitled to pursue a reduction of a lease, al-
though inventories had not been made up ;-*ad,— 8*— That a lease granted by
a liferenter under interdiction in security of a debt, in favour of one of his in-
terdictora, and which was consented to by the other interdictory was liable to be
reduced.
On the S4th of October 1761, Francis Frajer (primus), pro- Feb. 6. 1837.
prietor of Findrack, with consent of Jiis wife Catherine Gordon, ln, DlvI8I0ir.
on occasion of the marriage of his son Francis Fraser (secuodus) Lo^ Medwyn.
with Miss Herietta Baird, entered into a contract, to which they H.
were all parties, whereby he bound and obliged himself, * as soon
* as conveniency will allow, to make up and establish in his per-
* son all legal and proper titles, by service, precepts, charters, in-
* feftments, or otherwise, to the said lands, mills, and others after
* mentioned, and thereafter to make, grant, and subscribe, and
' deliver Id the said Frauds Fraser younger, and the said He-
* rietta Baird, his apparent spouse, and to the said Catherine
* Gordon, in manner and with the reservations and burdens after
' specified, dispositions thereof, containing procuratories of resig-
* nation, precept of sasine, and other usual clauses, with all ne~
* cessary securities extended in ample form ; likeas now as then,
* and then as now, and as if the said rights were already made
* up, the said Francis Fraser elder has given, granted, alienated,
* and disponed, as he, by these presents, from him, his heirs and
* successors, but with the reservations, burdens, and conditions
' always after expressed, gives, grants, alienates, and dispones to
' and in favour of the said Francis Fraser younger, and the said
* Catherine Gordon and Herietta Baird, but for their securities
* only of their foresaid liferent annuities of £600 Scots, to which
' each of them are provided during all the days of their lifetime,
( and to the heirs-male of the said Francis Fraser younger his
* body ; which failing, to the heirs-male of the said Francis Fraser
< elder his body, of his present or any subsequent marriage ;
c which failing, to the heirs-female of the said Francis Fraser
* younger his body of his present marriage ; which failing, to
c the said Francis Fraser elder his heirs or assignees whatsoever,
* heritably and irredeemably, but any manner of reversion, re-
* demption, or regress for ever— all and haill the town and lands
* of Findrack,9 &&, — * as mentioned in the said Francis Fraser
* elder his rights and infeftments thereof, and lying within the
* parishes,1 &c ;— f reserving always to the said Francis Fraser
L
802 CASES DECIDED IN THE
c elder his liferent, during all the days of his lifetime, of one just
' and equal half of the whole rents, profits/ &c. He also bound
himself to infeft ' the said Catherine Gordon and Herietta Baird
* in liferent, but only for security of their respective liferent an-
€ nuities of £ 600 Scots above specified; and the said Francis
' Fraser younger, and the heirs-male of his body, which failing,
* the other heirs above described, under and upon the conditions,
' provisions, and reservations always above specified ;* and a pre-
cept of sasine and procuratory of resignation were granted to that
effect. In virtue of the precept, sasine was taken in 1772 in fa-
vour of the respective parties therein mentioned.
Francis Fraser (primus) died soon thereafter, and his son
Francis Fraser (secundus) thenceforth possessed these lands un-
der these titles till July 1808, when he executed a disposition,
with consent of his eldest son, Lieutenant Francis Fraser, * to and
' in favour of myself in liferent, and after my death to the said
' Francis Fraser, my son, in liferent, but for his liferent use only,
* and to die heirs whatsomever of his body, in fee ; whom failing,
-' to William Fraser, my second son now in life/ &c. But he
empowered his son Lieutenant Fraser ' to set- tacks of the said
* lands for any space not exceeding nineteen years from the com-
' mencement, or twenty years from the date of such tack, provid-
* ed no grassums or entry-money be taken from the tenants.1
In December 1809 Francis Fraser (secundus) died ; and his
son Lieutenant Fraser was, on the 26th of the same month, infeft
in virtue of the above disposition, and thereafter the titles were
completed by a charter of confirmation.
In October 1814 Lieutenant Fraser executed a bond of inter-
diction against himself in favour of his wife, Charles Winchester,
and the late Francis Fraser, S. S. C, which was duly published.
Prior and subsequent to this period, Mr. Francis Fraser had
made advances on behalf of Lieutenant Fraser, and was his cre-
ditor under certain business accounts to the extent of «£795,
which were attested by him, his wife, and Charles Winchester.
In security of this sum, it was arranged that Lieutenant Fraser,
with consent of his interdictors, should grant a lease to Mr.
Francis Fraser of the lands of Findrack, and that the . latter,
on the other hand, should grant a back bond explanatory of
its true nature. At this time the whole of the lands had
been let to other tenants, and the real object of the lease
was to operate as an assignation of the rents. Accordingly,
in the month of August 1819, Lieutenant Fraser, < with the
* special advice- and consent of Mrs. Garden Winchester or
* Fraser, his wife, and Charles Winchester, advocate in Aber-
COURT OF SESSION. > 368
* deen, who, with Francis Fraser, writer in Edinburgh, are the
« voluntary interdictors of the said Francis Fraser of Finidrack,'
let to Mr. Fraser, S.S. C, the lands of Findrack, in consider-,
ation of a rent of JP15Q, for the period of nineteen years, ' with
c full power and liberty to receive and discharge the yearly rents
( and tack-duties due and exigible for such part or parts of the
4 said lands as may be under lease.' A factor was then appointed
by mutual consent to account to Lieutenant Fraser for the rent of
£150, and to Mr. Fraser for the surplus.
By a deed of settlement in 1818, Lieutenant Fraser nominated
his wife, Mr. Fraser, and a Mr. Strachan, or the acceptors or
acceptor, to be tutors and curators to his- children ;* but, before
his death, he drew hfe pen through Mr. Fraser's name. He died
in 1824, having executed another deed of settlement, by which
he appointed his wife to be his sole executrix and universal le-
gatee, in which character she gave up an inventory, and was con-
firmed.
He left a son in pupillarity, who was served heir of provision
in general to his grandfather Francis Fraser (secundus) under
the disposition of July 1808. His mother then, in the character
of his tutor, and as executrix of Lieutenant Fraser, brought an
action of reduction of the tack against the heir and representative
of Mr. Fraser, who was now dead. In support of this action she
maintained,
1. That the lease was null and void, because it was granted by
an interdicted person in favour of one of his interdictors, and was
executed by a majority of the interdictors, whereas no such power
was given to a majority ; and,
2. That at all events it expired by the death of Lieutenant
Fraser, who was merely a liferenter, and was prohibited from
granting leases on condition of receiving grassum or entry-money,
whereas the lease in question was given in consideration of a loan
or advance of money.
To this it was answered,
I. That the pursuer, as executrix nominate, had no title to
pursue a reduction of a lease, and that the deed on which she
founded, as entitling her to sue as tutor of her son, was vitiated
by the name of Mr. FraseT being deleted ; and at all events she
had not made up inventories as tutor in terms of the statute 1672,
c. 2.
2. That by the contract of marriage in 1761, Francis Fraser
secundus had merely a right of liferent, or, at all events, had no
power to restrict the fee thereby bestowed on his son Lieutenant
vol. v. u
004 CASES DECIDED IN THE
Fraser, ae the heir-male of the marriage,, to a Aietfeltfeuettt right ;
and it was not competent for Lieutenttnt Fraeer to consent to
such1 restriction, so as to affect the interest of Mr. Frasery who was
then his creditor ; and,
S. That as the lease wan an? onerous and rational deed, and! was'
granted with the consent of the other two interdictory and as Mr.
Fraser was a party to it, it was not objectionable.
The Court, on the report of die Lord Ordinary, sustained the
pursuers title, and decerned* in terms erf the libel.
Lord Gillies. — The question is, whether this be * good security?
Prior to the dale of the tack,- the whole lands were already let. It is
very plain, therefore, that it was impossible to let them at the same
time to Fraser. The leases themselves might have been assigned ;
but this was not done. There is, no doubt, a power to uplift the
rents, but there is no assignation to them. Besides, Francis Fraser
(secundus) was fiar, and entitled to dispose of the lands as he thought
fit. He conveyed them to his son Lieutenant Fraser in liferent, who
consented to that restriction, so that he was a mere liferenter. It is
true he had a power to grant tacks, but then he has not granted a
valid and effectual tack. As to the question of the title of the pur-
suer, there appeared at first some doubt ; but ehe is the only accept-
ing tutor, and as such is entitled to pursue on behalf of her sen.
Lord Balgray. — The lease is further objectionable, as being granted
in favour of an interdicted party. In the late case of Kyle, (Dec- 14.
1826, ante, Vol. V. No. 82,) where the same question arose, the deed
was sanctioned by a special quorum of the interdictors, and it was
clearly shown that it was an onerous and rational deed, which is no*
the case here.
The other Judges concurred*
Defender's Authorities.— 1. Erek. 7. 58; 1672, o. 2; 1. Ersk. 7. 23.
J. M'Cook, My\ S^-J. R> Skinner, W. 8— Agents.
COURT OF SESSION. 80*
i •
A* MithMMf Cdtophanm^SoL-QefK Hfye-^MemAes* No. 175.
J. GiBSott&CsAio tad Other*, Respondents.— -U. qfF. Mcmcreiff
•—Ivory.
Pro*** t Burgh Aopft/^Pendiiig tbe dtasssion of a defence of no process stated —
to * petition and complaint again** the election of Magistrates of a royal burgh,
a councillor, not being an original party to the complaint, allowed to sitt him-
self; to the effect of maintaining that the complaint had been effectually before
the Court within the two months.
On the petition and complaint against the election of the Ma- Feb. & 1827.
gisttates of Culross, mentioned aiite, Vol. V. No. 40, having gone 2d DmsT x
to the Lord Ordinary to be prepared, in terms of the late Act of Lora Newton.
SedeiriHtf,ftinotioti waswadeto haveoaeShed,ame«be# cf council, B.
sisted as a cotnpiainer along with Millar. This was opposed on
the part of the respondents, on the ground, that as the objection
of no process, founded on the allegation of Millar having with-
drawn the complaint before service was ordered, had been reserv-
ed by the judgment of the Court, it was necessary to determine
whether there was a process or not, before allowing any new party
to be sisted, it being impossible for a party to sist himself, unless
there were actually a process in Court/ On the other hand it was
contended, that every person having an interest to complain of
the election of Magistrates was entitled to sist himself as a party*
to the effect of maintaining that there had been a complaint proper-
ly presented within the two months, whereby a jus quaesitum bad
arisen in favour of all parties entitled to insist in such a complaint*
if once effectually presented to the Court. The Lord Ordinary
allowed Shed < to At hinttelf aa a patty to the «6m£>hfot5' tod
appointed parties to debate on the dilatory defence of no process
which had been given in by the respondents. To this interlocutor
the Court adhered, in respect it was still competent for the respond*
ents to insist that there was no process at the time of Shed's sist-
ing himself as a party.
Lord Justice-Clerk. — During the discussion of the preliminary de-
fence, any councillor has a clear interest and title to sist himself, and
ritatiBtadn thai there is * process. Erdri if Millaf himself wished to'
wltbdta#, And US admit tbttt theft was no process, still any councillor1
might sist himself, and contend that a complaint had been duly pre-
sented within the two months, which he, or any one having interest,
was entitled to carry on.
Lord Pitmilly. — If the meaning of the Lord Ordinary's interlocutor
was to find that there was a process, and that Shed was entitled to
sist himself as a party to it, I would be for altering ; but that is not
u 2
806 CASES DECIDED IN THE
»
the meaning of the interlocutor, which merely amounts to this, that
Shed ia entitled to appear and debate whether there be a proceai to
which be may afterwards sist himself, and I think that he ia entitled
to do so*
Lord Alloway. — I entertain doubts of this interlocutor, as it at pre-
sent stands. If there be no process, Shed certainly has no right to
sist himself; but this interlocutor allows him to sist himself, and it
might therefore happen that the process may be thrown out as to
Millar, and yet Shed be entitled to go on with it. If this, however,
were properly guarded against, I would go along with the rest of the
Court.
Their Lordships accordingly inserted the qualification abore men-
tioned.
Horne and Ross, W. S. — Gibson-Craigs and Wardlaw, W. &—
Agents.
*
No. 176. w- Fair, Suspender.
Sir S. Stirling, Charger. — Rutherfurd.
Feb. 6. 1887. Landlord and Tenant.— -A tenant having been charged for
2d Dmsioir. payment of the half yearns rent of the penult year of his lease,
Lord Mackcn- brought a suspension, on the ground that referees, to whom cer-
tain claims between him and his landlord had been submitted,
had given an interim award in his favour (though not an effectual
one) for a larger sum than the rent due.
The Lord Ordinary suspended the letters hoc statu, and the
Court adhered.
zie.
F.
1 . Moluc, Turnbuix, and Brown, W. S*— A. Pearson, W.
Agents.
No. 177- J- M'Cabtnky and Others, Advocators.— D. cfF. MoncreiflF—
Marshall.
C. Cbosbie, Respondent — Skene — Whigham.
Feb. 6. 1887. In an action at the instance of M1Cartney &c against Crosbie,
2d Division. l^e Steward of Kirkcudbright assoilzied the latter. In an ad-
Lord Macken- vocation the Lord Ordinary remitted simpliciter, and the Court
*fe* adhered.
M'K.
W. Dalrymplr,—J, Hannay, W. S_Agenta.
xie.
M'K.
COURT OF SESSION. SOT
Hazbowae's Trustees* Pursuers and Advocators.*-^ More. No, 178.
Sir J. D. Erskjne, Defender and Respondent— Jeffrey*—
Ru&erfurd.
Servitude— Clause.— Under a reserved right to coal, with the privilege of trans-
porting Sec., and doing every thing necessary thereanent, the party in right of
the coal is not entitled to take materials out of the lands for the purpose of
forming the roads required for the transportation of the coal.
In 1747 Mr. John Erskine of Carnock disponed to one Taylor Feb. 6. 1827.
his lands of Inzievar, ' reserving always to the said Mr. John Sd j)iyin<mm
4 Erskine, his heirs and successors, the property of the whole coal Lord Macken-
* within the reserved lands, and liberty and privilege to work,
4 win, and. transport the same, and for that effect to set down
4 sinks, make aqueducts, and to do every other thing necessary
4 thereanent, — he and his foresaids always satisfying and paying
' the said James Taylor and his foresaids the damage done to
' the surface of the lands thereby.9 This reserved right was after-
wards conveyed to the ancestor of the defender, while part of the
lands of Inzievar passed into the hands of the late Mr. Harrowar.
In 1816 Sir James Erskine (the defender's father,) having oc-
casion to make a new road from one of the coal-works, began to
quarry stones for the purpose of forming it out of a quarry in *
die hinds of Ineievar. As this was a privilege which had never
before been exercised, Mr. Harrowar's trustees applied to the
Sheriff of Fife for an interdict. This having been refused, they
brought an advocation, and at the same time raised an action of
declarator, to have it found that Sir James and his tenants had
oo right * to take any of the stones, wood, or other parts and per-
* tinents of the said lands &c for the purpose or under the pre-
4 tence of assisting them in forming roads of approach to or from
4 the said coal, or of aiding them in any other way in working,
4 winning, or transporting the said coals.9 Against this it was
pleaded in defence by Sir James, That his author, who was pro*
prietor of the lands and coal, having, on disponing the former,
reserved right to do every thing necessary for transporting the
coal, he was entitled under that reservation to take materials out
of the lands to make the roads which were necessary for trans-
porting the coal, he always paying the surface damage, as pro*
vided by the reservation in his author's favour.
The Lord Ordinary found, 4 that the reservation under which
4 Sir James Erskine claims does not give him right to take ma-
4 terials for making roads out of the lands of the late Mr. Har-
4 rowar, not occupied by the said roads ;' and his Lordship ac-
308 CASES DECIDED IN THE
cordingly decerned in the ordinary action, and in the advocation
advocated the cause, and interdicted in terms of the application
to the Sheriff. -
The Court, on advising a reclaiming note for Sir John Drum-
mond Erskine, who had now succeeded his father Sir James,
yn^niniously qdhered.
The Lord Ordinary observed in a nofe ; — Besides the terms of the
reservation, which seems limited to a right of passing over, or of
making a load or roads on the property, not necessarily implying
the right of taking materials for road-making there, one thing has
weight with the Lord Ordinary, viz, that the only damage for which
the coalmaster is to pay is surface damages, and therefore it is
not presumable that it was understood he had right to do other da-
mage by exhausting stone-quarries, lime-quarries, gravel-pits, clay
or sand, &c. for which he was not to pay. Could he build a bridge,
for instance, or make a canal, or erect an engine-house, or collieiV
bouse, by working out a lime-work, or sand?pit, freestone-quarry, or
clay-pit on the lands, paying nothing for stones, bricks, or mortar f
This seems too much. There seems no limit but -that applicable to
rights of road mentioned in the interlocutor.
Their Lordships unanimously concurred, observing that the absolute
right of the whole property, except the coal, had been conreyed away
by Mr. John Erskine, the original proprietor* and that the uppr*ar
tion, so for as regarded the transportation of the coal, amounted to
nothing wore than a right qf passage over thg Iwfr*
W. Dickson, W. S. — Campbell and Mack, W. S. — Agents.
No. 179. J- Dunlop, Advocator.— <9taR*.
J. Christie, (Habley's Trustee,) Respondent.
Penney.
> •
Feb. 8. 1827. This was a question as to whether certain pows, winch wore in
1st Division. ^e possesion of William Harley of Glasgow at the time of the
Lord EJdin. sequestration erf his estates, belonged to him or to Dunlop, who
*>• alleged that he had placed them in Harleyto cow-hotpae on trial
with a view to a sale, but that they had not bean aotually aold.
The Sheriff of Lanarkshire, after allowing a proof, found that
Dunlop had foiled in establishing hip property; but in an advo-
cation the Lord Ordinary altered, and the Count adhered.
Mack and WoTHaappopN, W. S~-J. 4. Campbwj,, W. S. — Age&fp.
COURT OF SESSION.
809
Mrs. Alletta Dk Witt, Pursuer.-
J. Young and Others, Defenders. — Napier.
No. 180.
This was a special ease relative to a servitude of road, in which Feb. 8. 1827.
the Lord Ordinary decerned in terms of the libel, and the Court lwDlv
adhered. Lord Eldin.'
W. Spaldikg,— G. Logan, W. S.— -Agents.
D.
A. Kay, Pursuer.— Bruce.
Mrs. Ronaldson and Others, Defenders.
No. 181,
Process. — The defenders having failed to lodge revised answers Feb. 8. 1827.
and note of pleas within the period limited, the Lord Ordinary ln DlvISIOir
allowed them to be received on payment of the previous expenses, Lord Eldin.
which were afterwards taxed at £9S. They then presented a note H.
to be reponqd without payment of expenses ; but the Court ad-
hered, except as to those of the summons and defences.
J. JohmtoVj— Cam pbsll and Pattisox, — Agents.
Trustxxs of R* V. Agnew, Raisers.—^. Wood.
A. M acneel and Others,
No. 182.
rroces* - Multiplepoinding.— -The Lord Ordinary having ordained the raisers of a
multiplepoinding to consign a certain sum, but having omitted to add the word
4 decerns.' whereby the order could not be enforced ; and it having become final,
and a change of circumstances having taken place— Held not' competent to
amend the order by adding that word, and that the raisers were entitled to lodge
a new condescendence of the fund in medio.
1st Division.
Lord Eldin,
D.
Hacneel and others, who had been purchasers from the late Feb. 8. 1827.
Hobert Vans Agnew of parts of the Sheuchan estates which had
been evicted from them, brought a process of multiplepoind-
ing in name of his trustees, in which the Lord Ordinary, on the
££th of May 1826, pronounced this interlocutor: — < In the mean
* time ordains the trustees, raisers of the multiplepoinding, within
* ten days, to consign in the British Linen Company Bank the
* /sum of £4Q8& of admitted balance in their hands ; and if said
' sum shall not be so consigned, allows an interim decreet to go
« out and be extracted, to the effect of compellihg consignation in
* the manner above mentioned ; and if extract shall be necessary,
' finds the trustees liable in the expense of extract/ The trustees
consigned «£2500 ; but being unable, in consequence of the in-
310 CASES DECIDED IN THE
solvency of their agent, to consign the balance, Macneel and others
attempted to extract the above interlocutor. As it had not the
word ' decerns," they found that this could not be done ; and
they then enrolled the case, when their counsel ' represented,
< that consignation having been made to the extent only of
< <££500, the claimants found that they could not obtain an ex-
4 tract, in order to make the consignation effectual as to the ba-
' lance, by reason that the interlocutor happened to be written
' out, per incuriam, without the technical expression c decerns.'
( He therefore moved his Lordship to supply that defect, and to
' allow an extracted decree to go out in the name of the said
* Alexander Macneel and others, claimants, for compelling con-
' signation of the aforesaid admitted balance in the hands of the
* trustees, deduction therefrom being allowed of the j£250GUx>n-
4 signed by them in part, as above mentioned.' On the other
hand, the counsel for the raisers * objected to any addition being
4 now made to the said interlocutor, and craved leave to give in
' an amended condescendence/ The Lord Ordinary having ac-
cordingly allowed them to give in an amended condescendence,
Macneel and others reclaimed, and contended that his Lordship
- ought to have issued, an interim decree in terms of his interlocu-
tor of the 25th of May, to the effect of correcting it by adding
the word * decerns/ In answer to this, the trustees maintained,
that as the interlocutor was final, it was no longer competent to
touch it ; and that as there had been in the mean while a material
alteration of circumstances as to the amount in their hands, they
ought to be allowed to give in a new condescendence. The Court
adhered.
Walker, Richardson, and Melville, W. S» — Donaldson and
Ramsay, W. S. — Agents.
WO. 183. James Lindsay, Fursuer.—Cuninghame.
Peter Lindsay and Mandatory, Defenders. — Ckphane —
Brownlee.
Mandatory.— Held that the mandatory of a defender residing abroad is liable for
expenses.
Feb. 8. 1827. The only general point in this case was, whether the manda-
1st Division. torv of a defender residing abroad is liable in expenses ? The
Lord Eidin. Lord Ordinary decerned against both parties, and the Court re-
H. fused to allow the question to be argued, holding it to be settled;
but, on the merits, limited the decree for expenses.
J. Greig,— R. Wilson,— Agents.
COURT OP SESSION. 811
J. Wright and Gr. Anderson, Suspenders. — Keay. No. 184*
D. O'Henly, Charger.— Buchanan.
Messenger— Reparation* — Held that the cautioners of a messenger, who has been
guilty of negligence in executing a summons, cannot be subjected in payment of
the debt, until it has been constituted against the debtor. .
O'Henly, a merchant in Loch Boisdale in the island of Feb. 8. 1887-
South Uist, having sold goods to James Urquhart, the master of ln plvIMOir.
the brig Hero, (of which M'Killigan and Robertson, merchants Lord Ailoway.
in Banff, were owners,) on behalf of the vessel and crew, and H.
Urquhart having drawn a bill on the owners, which they refused
to accept, O'Henly raised an action against the whole parties for
payment before the Court of Admiralty. On the 22d of Decern- ,
ber 1820, his agents transmitted the Admiralty precept to Alex-
ander Thomson, messenger in Banff, instructing him to execute
it against the defenders; and on the 80th Thomson wrote to
them, stating that he had done so against M'Killigan and Robert-
son, but that he had not found Urquhart, who he understood
was in King's Bench prison, and that he would bring the precept
with him to Edinburgh on Wednesday then first. In conse-
quence of being erroneously addressed, the letter from Thomson
did not reach O'Henly's agents till the 11th of January 1821 ;
and on the 29th they wrote to him, expressing their surprise
that be had not transmitted the precept, and intimating that they
would hold him and his cautioners liable ; which notification they
renewed on the 15th of February, and told him he need not now
send them the precept. This precept, as usual in those of the
Admiralty Court, contained a warrant of arrestment.
In the mean while M'Killigan and Robertson put up protesta-
tion against O'Henly for not insisting in the action, which they
obtained and extracted. O'Henly then raised an action in the
Court of Session against Thomson, and Wright and Anderson*
his cautioners, for the debt of i?30 and the expenses incurred,
being <£& 17s.; and having obtained a decree in absence for these
sums, and £\1 : 5 : 2 of expenses of process, and £1 : 17 : 8 as
due of extract, he gave them a charge, of which Wright and
Anderson brought a suspension.
In defence they maintained, That although they admitted their
liability for the expenses, yet that decree could not pass against
them for the debt until it had been constituted against M'Killi-
gan and Robertson, who were perfectly solvent ; that in all the
cases which had hitherto arisen as to the liability of cautioners
for a messenger, the debt had been constituted, and the negli-
$\» CASES DECIDED IN THE
gence occurred in the execution of diligence ; but that it did not
follow, because a party bad raised a summons, that bis claim was
well founded ; and if it were not well founded, be could not law-
fully insist for payment, either from the messenger or his cau-
tioners ; and that although there was a warrant to arrest in the
precept, yet this was merely in security in the event of obtaining
decree, and could not establish that in fact any debt was due.
On the other hand, O'Henly contended, That he was entitled
to absolute relief from the cautioners, to whom he was willing to
assign his claims ; that it was not incumbent on him to take any
further steps in the matter ; and that as he had been prevented
from executing his arrestment,— and as the debt was constituted
against Urquhart,— and as it had been settled that the measure of
loss was the amount of the debt, he was entitled td payment, re-
serving to the cautioners their recourse against M'Killigan and
Robertson, and against Urquhart.
The Lord Ordinary repelled the reasons of suspension, and, on
advising a representation, adhered, ' in respect that the Admi-
* ralty precept was sent to the messenger to be executed qua mes-
* senger solely, and he either did not execute the same, or at all
* events did not return it, on which arrestments might have been
* instantly used ; and in respect that the respondent from the first
* offered to assign to* the representee the whole of bis original
* debt against all the parties concerned.'
Against this interlocutor the cautioners reclaimed ; and, on ad-
vising their petition with answers, the Court, on the 12th De-
cember 1888, * superseded consideration of this petition until the
' debt be constituted, when they will advise the same with the
' answers and whole cause.1 Thereafter O'Henly having obtained
•decree of constitution against M*Killigan and Robertson, who
paid the debt, the question came to be, what was the amount of
expenses for which the cautioners were liable P The Court found
the letters orderly proceeded against the cautioners ' for the sum
' of £6. 17&, with interest thereon, and for the sum of .£11 : B i £
' of expenses of process, and for £1: 17 : 8, the dues of extract,
* all as stated in the decree charged on;1 but found no further ex-
penses due.
At the first advising of the case,
Lord Balgray observed : — The interlocutor is right. The summons
contains a warrant of arrestment, by virtue of which tbe debt might
have been recovered; and O'Henly is therefore entitled to say that
he would have recovered it. Here the diligence is engrafted on the
summons, aad it is impossible to maintain any distinction between
this case and those which have formerly occurred.
COURT OF SESSION. SIS
Lord Gillies-- — It is true, if a messenger neglect to execute dili-
gence, and the "party be insolvent, that the messenger and the cau-
tioners must pay tie full debt. In these cases the debt is consti-
tuted ; but here the debt is not only not constituted, but is disputed*
It is true that it is constituted so for as regards Urquhart, (as to
whom no neglect can be alleged in executing the summons) ; but it
is not so against M'Killigan and Robertson, who are not alleged
to be insolvent. The question is not, whether any damage has been
sustained, but whether there is any debt ; for, if there be no debt,
no damage can be qualified.
Lord President. — I am of the same opinion. If the debt shall
hereafter be constituted, and O'Henly is unable to recover from the
proper parties, he may do so from the cautioners of the messenger.
Lord Svccoth. — Although the debt is liquid quoad Urquhart, yet
it is not so as to M'Killigan and Robertson. No neglect can be
alleged as to the execution of the summons against Urquhart, be-
cause he was not in Banff, but in King's Bench prison. The neglect,
therefore, which can alone be founded on, relates to the transmis-
sion of the precept, so as to proceed against M'Killigan and Robert-
son ; and no doubt, if the debt had been constituted against them,
O'Henly would have been entitled to recover. But they deny the
debt, and therefore we cannot piopeed further till decree of consti*
tutkm be obtained.
At the second advising,
Lord Craigir stated, that he considered it a nice question, and that
O'Henly was entitled to be fully indemnified.
Lord Gillies observed, that there was a material distinction between
die execution of a summons and the execution of diligence ; and
asked whether, if a summons of declarator had been brought by a
party of his right to the Roxburghe estate, the messenger and his
cautioners would be liable to implement the conclusions of it by
loosing the summons?
The Lord President concurred in this distinction, and remarked,
that if the bill had been accepted by M'Killigan and Robertson, it
would not have been necessary to obtain a decree of constitution ;
but $a that was requisite, the cautioners could not be Hable in the
expenses of obtaining that decree*
Suspenders' Authoritie*.—WMmw, March 2. 1820, (F. C); 1 Bell, 283,
Charger1* Authorities.— \. Bell, 413; Chatto, Jan. 17. 1611, (F. C); Dengan,
July 3. 1817, (F. C.)
Macmillan and Grant, W. S. — H. Macqueen, W. S. — Agents.
314 CASES DECIDED IN THE
No. 185. Jt. Jackson, Suspender. — Sol.-Gen.Hcpe — Christian.
Mrs. E. Jackson, Charger. — D. ofF: Moncreiff— Ivory.
Juratory Caution. — Juratory caution in a bill of suspension not received without
production of title-deeds of suspender's heritable property, which were in pos-
session of his agent, subject to a right of hypothec.
Feb. 8. 1827. ' A bill of suspension of a charge on a bill of exchange was
2d Division passed on juratory caution ; but the bond not having been lodged,
B ill-Chamber. a certificate of refusal was taken out. A second bill was presented,
Lord Eldin. which the Lord Ordinary refused. The suspender then re-
B* claimed, and still offered j uratory caution. To this it was objected,
that in the interim he had granted an heritable bond to his agents
over a house, which constituted his whole property. With a view
to obviate this objection, the parties holding the bond gave in a
minute, agreeing to waive their preferable claim under it in fa-
vour of the charger; but the Court holding this to be insufficient,
as it would not be available in a question with their assignees or
creditors, refused the reclaiming note. A third bill was then
presented, accompanied with a renunciation of the bond; but the
agents, holders of the bond, having refused to deliver up the
title-deeds, which they held, subject to a hypothec for their busi-
ness-account, the Lord Ordinary refused the bill, and the Court
adhered.
Lord Justice-Clerk. — We agreed to pass the former bill on jura-
tory caution ; but there must be a fair bona fide juratory caution
given. What is here offered is not so. To make it worth any
thing, the title-deeds must he produced; and unless the hypothec be
renounced, and the titles lodged, we must refuse the bill.
Lords Pitmilly and Alloway concurred.
#
Ritchie and Miller, — W. Murray, W. S. — Agents.
No. 186* A. Campbell, Pursuer. — Sol-Gen. Hope — ATNeilL
C. Campbell, Defender.— Jameson — A. Murray jun.
Feb. 8. 1897. . Expenses. — The Court adhered to an interlocutor of the Lord
2o Division. Ordinary, finding the defender liable in expenses, subject to modi*
LordMacken- fication.
lie,
B* Bowie and Campbell, W. S. — Cuningham and Bell, W. S. — Agent*.
COURT OF SESSION. < SIS
Cuningham and Bell, W. S., Pursuers— IS Jmy. No. 187.
Mrs. M'Kibdy, Defender.— Cwninghame— Shaw.
Passive Title*— Vitiout Jntromisiion*—h widow who had been decerned executrix
qua relict, but had intromitted with her husband's effects &c. without confirma-
tion or making up inventories, subjected to the passive title of vitious intromis-
sion.
This late Mr. M'Kirdy, writer in Greenock, was, at the period Feb. 8. 1837.
of his death, indebted to Messrs. Cuningham and Bell, writers 2d DmM0K.
to the signet, the sum of £297, being the amount of certain ac- Lord Macken*
counts of law business performed by them on his employment zie-
for behoof of various clients.. M'Kirdy died suddenly, leaving M
the defender, his widow, with a family of six children. The
widow continued the possession of the furniture and other move-
ables &c of her deceased husband, and at the request of several
of his creditors, she obtained herself decerned executrix qua
relict ; but she never gave up any inventory, or obtained confirm-
ation. Under this title she raised actions against several
debtors to her deceased husband, in one of which, against persons
called Niven, she obtained decree, under the qualification that she
should confirm before extract. It was also alleged by the pur-
suers that she had recovered several of the debts due, and in
particular one of £250. This last-mentioned debt she admitted
to have recovered, but she alleged that she had applied it in pay*
ment of JP180 of the pursuers' claim, and of certain preferable
debts, which more than exhausted the remainder.
For payment of the balance of their accounts Cuningham and
Bell raised the present action against the widow and children, as
having incurred a representation to the deceased by the passive
title of vitious intromission. In defence it was pleaded, That
under all the circumstances of the case, the widow having ob-
tained a title as executrix qua relict,' and having intromitted, so
far as she did intromit at all, at the request and for behoof of
her husband's creditors, and obviously without any view of ap-
propriating any part of the funds to herself, she ought not to be
subjected in an universal representation, merely from neglect to
make up inventories, and obtain herself confirmed ; and that the
decree craved against her should be restricted to one cognitionis
The Lord Ordinary found, ' that it is not denied that the de-
' fender had a general intromission with the effects of her de-
* ceased husband as executrix qua relict; while it is not averred
816
CAflBfi
» THE
■* that she ever was confirmed, or made out any inventory ;' and
decerned against her accordingly, but assoilzied the children.
To this imertoc&tot tbfe dourt adhered.
Lord Alloway. — With every desire not to cany a very severe doc-
trine into effect, I do not see how we can avoid finding the defender
liable, especially when we see, in the actum against Nivet, the detttu
not allowed to be extracted till eenflruMtiofl obtained, tktis ptttthig
her completely on her guard. It is the hardest case I ever saw, but
it is impossible to alter the interlocutor.
LoAd PiTtoiLLY.— I can see no reason for interfering with tins inter-
locutor. The only plea arises from the circumstance of great hard-
ship, Which, however, We cannot consider in a question of law. No
doubt, the severity of our law as to the passive title of titiduS hitro-
inisstoik is tnuoh rotated from what it was formerly* but we tnsf ap^
ply herd a remark made in the taSe of Gttdfter, that the doctrine of
vitious intromissiotf may be blotted out of pat book* if the defender
is not liable. . She has intromited generally and. recovered debt*
without confirmation, and we bare only a vague staaeitant thai no-
thing wrong was intended, fee* We must not, however, yield to
such considerations; and unless this woman be held fo have incurred
the passive title of vitious intromission, I must hold that doctrine to
be entirely at an end*
Lord Justice-Clerk.— -I have felt with all your Lordships a desire
to relieve this woman ; but, in deciding a pure question of law, we
must not give way to our feelings, and in point of law I can see no
ground for altering. The case of Gardner was of a very special na-
ture, and the Court were far from unanimous ; while, on the other
hand, the case of Lord Belhaven and several others were decided
on circumstances not nearly so strong as those which occur In the
present.
Defender* * AvthoriHet.^. Ersk. 9. 53 j Scott, Dec. 5. 1683, (9894); Stark, J«.
22.1713, (9830); Gemmell, July 9. 1724* (9830); Wilson, June 19. 1772* (9833);
Taws€«, July 10. 1783, (9837) ; Gardner, Dec. 9. 1802, (9840) ; Cray, Feb. 27*.
1062, (9857) ; Baird, June 15. 1661, (9856) ; Brown, July 6. 1664, <9&fifr) ; Ben,
March 1686, (9860) ; Renton, Dec. 12. 1738, (9860.)
Cumingham and Bell, W. S. — A. P. HENDBnsoNy-o-Agents.
COUBT OF 9ES6IO& 317
S. Grant, Pursuer. — Cumngkame—Hopkirlc. No. 188.
Captain J. M'Donal© and £h &baxt, Defendert.~£W.-6tot.
Hope—Hcmdysfde.
CamUcmer— Landlord and Tenant.— Held,— l.-*That an improbative cautionary
missiYe for a tenant is rendered binding by the tenant being put into possession
on the faith of it ;— 2.— That a landlord does not lose his recourse against cau-
tioners by neglecting to enforce his right of hypothec ;— and,— 3.— That cau-
tioners for a tenant * for the first three years rent of a subset,' are not freed in
consequence of no written lease for a definite period of longer endurance having
been granted.
Ii» October 1819, the defenders addressed to the' pursuer, who Feb. 8. 1887.
was principal tacksman of a smalt frfrtn called* Lentrlieh, a letter *,„ diusio*.
in these terms:—* We the tfndersigned engage to be accountable Lord Medwyn.
4 to you for the first three years rent of a subset from you to B*
' Allan M'DoAald, say £46 for the three years.' This person,
Allan M'Donald, was put into possession at the Martinmas fol-
lowing, but he received no written sublease from the pursuer.
He pud the first year's rent ; but having fallen the second year
into arrear, he deserted the farm in February 182&» leaving the
ground unsown and unlaboured. On this the pursuer raised an
action before the Sheriff of Elginshire against the defenders, on
their cautionary missive, for payment of the rent for the year
18&1, and also for the current year.
In defence against this action it was pleaded,
1. That the cautionary missive was improbative as to the de-
fender Duncan Grant.
% That it had reference to the first three years of a subset to
be granted, obviously meaping a subset for a longer period than
three years, but that no such subset had been granted.
3. That the pursuer had lost recourse by not having; enforced
his right of hypothec ; and,
4. That he had allowed a brother of Allan ATDonald to possess
along with him, who had paid part of the first year's rent, and
had thus been recognised1 by the landlord as joint tenant.
To this it was answered,
1. That a rei interventus had followed on the missive, by Allan
ATDonald having been allowed to enter into possession on the
faith of it.
% That there was no provision as to a sublease being granted
for any definite period, and that the term of the tenant's possession
had been shorter than three years, in consequence of his failure
to pay the reaty and subsequent desertion.
3. That a landlord was not bound to enfofte his hypothec dtor-
1-
818 CASES DECIDED IN THE
ing the currency of a lease, in order to preserve recourse against
cautioners, and that nothing had been left on the farm at the
period of the tenant's desertion ; and,
4. That the tenant's brother had merely resided in the house
with him ; and besides, that his having paid rent as tenant, if it
had been so, was to the advantage of the cautioners, and not to
their prejudice.
The Sheriff having assoilzied the defenders, the pursuer raised
an action of reduction of the decree of absolvitor, concluding also
to have the defenders found liable in payment of the rent sued
for in the original process. In this action the Lord Ordinary
found, ' that there is sufficient rei interventus to obviate any ob-
' jection on the part of the defender Duncan Grant .that the said
* letter is not probative quoad him, and that a landlord does not
' lose his right of recourse against a cautioner for his tenant by
' neglecting or delaying to enforce his right of hypothec, as was
' found in the case of M'Queen v. Fraser, June 11. 1811 ;' and
reduced and decerned accordingly. The Court unanimously ad-
hered.
Their Lordships were unanimously of opinion that the case of M'Queen
had settled the only point of importance in the case, and that the
judgment in that case was well founded, on the principle that it was
the duty of cautioners for a tenant to see that the rent was duly paid,
and that the landlord was not obliged to injure the farm, and expose
the tenant to the risk of ruin, by exercising his right of hypothec
whenever he fell into arrear. In regard to the plea founded on no
lease for any period of years longer than three having been granted,
their Lordships thought, that had a lease for any definite period been
stipulated, it would have altered the case very much ; but that, as it
stood, it afforded no ground for relieving the cautioners.
R. Mackenzie, W. S. — A. Duff, W. S. — Agents.
No. 189* J. Wilson, Suspender. — Jameson — Shaw.
J. and J. Mitchell, Chargers. — MaiUawL
Summary Diligence— Bill of Exchange— Forgery. —A party having been charged
as payee and indorser of a promissory note, but not being designed on the face
of it, and his designation having been without authority inserted in the diligence,
and he denying that he was a party to the note, and it appearing, comparatione
literarum, that the indorsation was not his signature, the letters were suspended
simpliciter.
Feb. 9. 1827. J ames Wilson, farmer at Shields, was charged at tfie instance
1st Division. °f Mitchells, as the indorser of a promissory note drawn by John
Lord Eldin. Wilson senior, which was in these terms : — ' £105 : 1 4 : 7 ster-
s.
1
COURT OF SESSION. 319
' ling.— Glasgow, 6th June 1825.— Three months after date, I
' promise to pay to James Wilson, or order, at my shop, £105.
' 14s. 7d. sterling, value received. John Wilson senior. (Indorsed)
'James Wilson.9
Of this charge James Wilson brought a suspension, in support
of which he stated, that the drawer, John Wilson senior, had been
guilty of forgery to the extent of upwards of .£20,000, and had
been obliged to fly from the country ; that the mode in which he
usually committed these forgeries was by drawing promissory notes,
payable (as in the present case) at his own shop, in favour of a
payee whom he did not design, and whose name he put on the
back as indorser ; and that when these notes became due, they
were brought to his shop and retired by him by means of the pro-
ceeds of similar forged bills; so that in this way he had succeeded
for a long time in escaping detection. The suspender denied
that he was a party to the note charged on, or that the signature
on the back of it was written by him ; and stated, that although
there was nothing on the face of the note to point him out as the
James Wilson whose name was on the back of it, yet either the
notary or the writer to the signet had, without any authority,
fixed it upon him by inserting his designation, ( farmer in Shields,9
in the diligence.
He therefore maintained,
1. That if the name ' James Wilson9 indorsed on the note was
intended to represent his signature, it was a forgery ; that, how-
ever, it might be the genuine signature of some other James Wil-
son ; but it was shown, by comparing it with his genuine signa-
tures, that it was not subscribed by him, and that if the chargers
alleged that it was his signature, they were bound to prove their
al legation ; and,
£. That the charge was unwarrantable, seeing that the notary
or writer to the signet who inserted the designation in the dili-
gence had no authority for doing so ; and that as he denied that
he was a party to the note, it was incumbent on the chargers, if
they alleged that he was so, to constitute the debt against him by
an ordinary action, and not to proceed by summary diligence.
To this it was answered,
1. That the suspender was brother-in-law to John Wilson
senior," and was in the practice of accommodating him, and giving
currency to his bills ; that the chargers had received the one in
question from John Wilson senior on the faith that it was in-
dorsed by the suspender, and they accordingly averred that his
signature was genuine ; and that at all events, as he had given
currency to similar bills, he was liable in payment of it ; and,
vol. v. x
320 CASEg DECIDED IN THE
2. That the diligence was warranted by the invariable practice
in aH canes of drawers or indpraers of MUs, none of whom was
ever designed on the face of the biH.
The Lord Ordinary, after having compared the signature cm
the note with those which were genuine 6f the suspender, and
« having considered the paper or writing charged upon, said to
* be a promissory note granted by Jdhn Wiham eeomr m Caeum
* of the suspender, and indorsed by him to the charger, for the
' mim of £105 ; 14 : 7, dated 6th June 1825, and payable three
' months after date, fewod that the said paper or writing is not
4 a true note or bill received Or itutomd by the suspender, aad
* due and payable by him, but a paper not obligatory open him;'
and therefore suspended the letters simpliiater, and
due.
The chargers then reclaimed, and contended that the
ought to be remitted to the Jury Court, to try the question of
forgery; but the Court adhered t* the Lord Ordinary's Interlo-
cutor, with this explanation,—* In to far alter the ratio decidendi
' of the interlocutor reclaimed against, OS' to find that the name of
' the said James Wilson being inserted without- any further de-
' signation, whether in the body of the note, or added to the sob-
* scription, the paper or writing cannot be held ex facie a true
( note, unless otherwise proved to be such.9
Loan Craioic — In this ease the suspender denies that he
party to the bill, and it appears, on comparing the name indorsed
with bis genuine signatures, that his allegation* is true. If he had
been designed on tbe face of the bill, there might have been some
difficulty in refusing a remit to tbe Jury Court ; but be is not so ;
and it is only by tbe act of the charger, or those employed by him,
that the diligence has been directed against this suspender. I appre-
hend, therefore, that in these circumstances, which take this out of
the ordinary case, we cannot allow tbe diligence to proceed.
Lord Gillies. — I am of the same opinion. Tbe notary or clerk to
the signet employed by the chargers has thought fit to assume that
the suspender was the James Wilson whose signature appears on
the back of the bill ; but it is manifest, on comparing his genuine a%*
natures with that on tbe bill, that they have gone against the wrong
party. There ate many other James WUsopm in Glasgow, and I
can see no authority for fixing an the suspender . There ie no mr
common name than that of John Smith, and I have no doubt that
in London there are ten thousand bjHa in circnbtion with that naese
uponit;butwoulditbecorof>et«t,«
or their agents, to proceed in a sununary manner against the exten-
sive banker of that name, notwithstanding his denial that he was tbe
COUHT OP SESSION. 8*1
potty, and tUl this was manifest on inspection? 1 aftirefcefid not ;
and therefore, as it m plain that the name on the note in question is
not the signature of the suspender, the letters must bo suspended.
Lords Pmmimail and Balgkay eoncurred.
Chargers* Jutiatities.—l. Bell, 302; 3. Esp. 60 ; 4. Up. 226; I. Marsh. 159.
C. Fishksv~W. GuTHniSy— Agents.
• 0
A. Munt and Others, Pursuers. — Cvtten. No. 190.
D. Mu*ro, Defender.—/. W. Dickson.
Pnee$$—&. Gto. IV. e. 12S.— A pursuer having failed to lodge answers to a con-
cVscendeace, the defender assoilzied wtth full expense*, although the latter had
been previously subjected in the greater part of the expenses of process.
Moim and others brought an action before the Admiralty Court Feb. 9. 1827.
against Munro for payment of £9& : 14 : 6, in which judgment }n ~jy^lon,
was pronounced against him with expenses, in respect of his re- Lord Meadow-
fusal to confess or deny certain facts, and of declining to undergo bank*
a judicial examination. Of this he brought an advocation ; and the
Lord Ordinary having appointed mutual condescendences, Muir
and others reclaimed, and contended, that before being allowed
to condescend, Munro was bound to pay the previous expenses,
and the Court pronounced judgment accordingly, and remitted
quoad ultra. Thereafter Muir and others having failed to an-
swer tike condescendence for Munro, the Lord Ordinary assoil-
zied him from the action, and found him entitled to the whole ex-
penses, both in the Court of Admiralty and the Court of Session.
Against this interlocutor Muir and others reclaimed ; but not
having produced their answers along with the reclaiming note, in
terms of the statute, the Court adhered.
Oruiston and Allan?— D. CLTKSr^Ageats.
John Baowy, Pursuer.— A. Mmmty. No. 191.
James Tubneb, Defender.— JPiAwi*
Pro6et+—Cdkg9 of Justice— to. Geo. III, c. 119.— Held incompetent for a party
claimant rigfct as a member of the College of Justice to raise an action for a sum
under -£25, as indorsee of an open account due to' a party not having any prWl*
lege, and to whose,truatee he was to be accountable.
Johk BaowN, writer in Edinburgh,, raised ait action against Feb, 9. 1827.
Turner m the Court of Session as indorsee of an open account of )8T Dm8I0ir.
^I& 14b. alleged to be due by Turner to one Brown, a boot and Lord Meadow*
•hoe maker,, and whose estate had been seqfuestrated. In- defence b£k'
x8
382 CASES DECIDED IN THE
Turner pleaded, That as the pursuer did not allege that he was
a member of the College of Justice, and at all events, as he did
not hold the debt as in his own right, having stated in a letter
demanding payment, that he had been c required to account for
* your debt to the trustee on Mr. Brown's estate/ and as it was
less than J? 25, the action was incompetent. To this it was an-
swered, That the debt was indorsed to the pursuer, without limita-
tion, in payment of a debt due to him, whereby he had full right
to it ; and as he was a member of the College of Justice, the action
was perfectly competent.
The Lord Ordinary repelled the defence, * in respect tbere is
' no evidence in process to instruct that the pursuer does not hold
« the account libelled in his own right.' But the Court, after
stopping the counsel for the defender, and calling on the counsel
for the pursuer, altered, and dismissed the action.
The Judges were of opinion, that as it appeared from the pursuer 8
own letter that he was liable to account to the trustee of the bank-
rupt, this was evidence that he did not hold the debt on his own
account, in which respect this case was distinguishable from that of
M'Intosh against Brodie, June 17. 1826, (ante, Vol. IV. No. 439.)
J. Brown, — D. Wilson, — Agents.
No. 192- John Morrison and Spouse, Pursuers. — D. qf F. Moncreiff—
Cuningfiame.
M. Miller and Others, (Morrison's Trustees.)— Codtfturn—
Keay — Shaw.
Tntftef^Reparaiion.-^-CircumBt&nces under which it was held that testamentary
trustees, who were required by the testator to invest the residue of his funds in
heritable property or bank security, and who, acting under the advice of coun-
sel, had declined, on the requisition of all concerned, to invest the residue in
Government stock, and brought a process of multiplepoinding and exoneration,
in the course of which the fund was paid to those having right, were liable in the
loss thereby sustained.
Feb. 9. 1837. Thk late William Morrison, the son of the pursuers, having
1st Division ref^ed in India a fortune of upwards of £ 20,000, returned to
Lord Eidin. this country, and, having gone to England on a visit, was sud-
D. denly taken ill, where he made his will in an informal manner.
By that deed he bequeathed < to my father John Morrison, farmer
' m Campsie, and to my mother Cecilia Lennox, jointly, the
* whole of my property whatever which I. may die possessed of,
( after paying all my lawful debts, burdened with the following
' payments.' . He then bequeathed legacies to each of his six sis-
L.
COURT OF SESSION. 8*3
ters, and to certain other persons, and stated that ' it is further
< my. will, that on the decease of my last surviving parent, as
' named above, what remains of the money I have bequeathed
' above to them shall be divided in equal shares amongst my sur-
' viving sisters, and the surviving children of such of them as may
4 have died before theirs, and my parents.' He also provided,
' that if any of my heirs or legatees above mentioned should dis-
4 pute or go to law with the others respecting the sums above be-
* queathed to them, they shall forfeit all benefit of this my last
< will and testament/ &c. ; and he thereby appointed ' William
' Fairley, merchant in London, of the house of Fairley, Bonham,
' and Company, Mr. Michael Miller, merchant in Glasgow, Mr.
' William Carrick, merchant in Glasgow, the Reverend William
4 Hamilton, minister of the gospel at Strathblane, and Mr. James
4 Allan, merchant in Glasgow, to be my executors and trustees
' of this my last will, and desire them to invest in heritable pro-
* perty or bank securities the nett proceeds of my estate, after
' paying the above legacies, for the benefit of the residuary lega-
' tees, my parents.9
Mr. Morrison died within a few days after executing this
will ; and the pursuers and their daughters, together with the
other parties interested in the will, then entered into a deed of
agreement, in which, after narrating the terms of it, and ' that
4 after the said will and testament was executed, several matters
4 occurred to the deceased which had been omitted to be inserted
* therein, and which he verbally desired should be considered as
4 forming part thereof, owing to which and to other circumstances,
4 particularly to the circumstance of the said will having been
4 written in a hurried manner, it is necessary that the executors
4 should have more full authority than what is contained in said
4 will, to enable them to carry the intentions of the deceased fully
6 into effect for behoof of all concerned ;' therefore they bound
and obliged themselves 4 to ratify, as we do hereby fully ratify
' and confirm, the foresaid last will and testament of the said de-
* ceased William Morrison in the whole head articles, clauses,
4 tenor, and contents thereof, and hereby engage, agree, and bind
* ourselves and our foresaids never to quarrel or impugn the
4 same, or any part thereof, in any manner whatsoever, but to
4 give every assistance in our power towards carrying the same
4 into complete effect ;' and they then authorized 4 the saids Wil-
4 liam Fairley, William Carrick, Michael Miller, the Reverend
4 William Hamilton, and James Allan, and the acceptors or ac-
4 ceptor, survivors or survivor,' to proceed to the execution of
the office committed to them, by paying off the debts and lega-
9M CASES DECIDED IN THE
cies, ' and to invest the balance, after deducting theae rod the
< other sums hereafter mentioned, and all other sums and expenses
' to be legally and necessarily laid out 1>j them* ia the manner
« directed by said will and testament V and, with copsent of the
accepting trustees, they appointed Mr, C&rrick to be factor, wb-
ject to the direction of the trustees, and authorized bim tQ make
payment to them of the residue, or invest the fame in the manner
directed by the will. ...
Messrs, Miller and Carrick, as the accepting and aurvivjng
trusteed or executors, proceeded to realize the estate, part of which
they invested in heritable security, and the remainder, being about
£ 10,000, they deposited in the Glasgow Bank, on a receipt pay-
able to Mr. Carrick as factor. A question having then arisen
between the trustees and the pursuers as to whether they were
merely liferenters, or entitled to payment of the residue, the pur-
suers consulted two different counsel, one of whom gaye an opi-
nion that the nature of their right was extremely doubtful, &pd
the other, that although, according tq the law of Scotland, they
were the fiars or residuary legatees, yet as the will had been exe-
cuted in England, it might probably receive a different interpre-
tation there. These opinions having been shown to the trustee*,
they consulted counsel upon this point, and alap as to the mode
of disposing of the residue. The answer which they received
was, that ' as to the right of the parents, the words of the will are
' not very clear upon this point ; but, on the whole, I <un of opi-
' nion that the parents are not limited to a liferent, but fue the
( residuary legatees, and after payment of the special debts, lega-
* cies, &c. are entitled to the absolute property of what shall re-
,' main :'— ' That as the parents are, in my opinion, to be the ah-
« solute proprietors of the residue, they may do afterwards with
' it as they please ; hut, in the first instance, I conceive that the
' memorialists are bound by the express words, of the will to lay
< ont the money in heritable property or bank security, and that
' neither the parents nor anybody else can prevent this-' They
were also advised to raise a process of multiplepoinding and exon-
eration, in order that the question of right might be determined,
and a judicial discharge obtained.
On the 2d of May 1821, a few days after receiving this opinion,
the trustees received a letter from a gentleman acting on behalf of
the pursuers, requiring them * to vest the money new in the Grlsus-
' gow Bank in Government stock, one half in three per cent, con-
' sols, and one half in three per cent, reduced,' Immediately <m re-
ceiving this letter, the trustees, op the 4th of May, wrote to ifee
pursuers, that < they have coipe to the determination ot being
COURT OF SESSION, 8S5
by a Court of law in the future administration of the
* estate, according to the recommendation of an eminent counsel,
* and mean to proceed with, an action before the Court of Session,
' calling the whole parlies into the field, in order to ascertain their
4 several interests, and fix the disposal of the funds ;' and in this
resolution they stated that they had been confirmed by the above
requisition, which appeared to them to be at variance with the
wilL On the 16th of the same month, the pursuers and the other
parties interested in the will wrote to the trustees the following
letter : — ' Gentlemen,— We have received yours of the 4th May,
* and be pleased, to attend to our answer*
4 We have aa interest in the funds in your hands No other
4 person has any ; in particular, you have none whatever. You
4 seem to think that when the balance in your hands lies in a
4 bank upon a deposit receipt, and subject to the order of your
' factor, this is a bank security in terms of the will. We think
* it is no security at all ; and we do repeat the desire expressed
4 in Mr. MTarlane's letter of the 3d May, delivered to yon that
' day, that this balance shall be forthwith vested in Go? eminent
4 stock, one half S per cent, reduced, one half 3 per cent, consols.
4 We further give you notice, that when we come to settle with
4 you, we shall bold you liable for the highest selling prices be*
4 tween the 15th May, when the money ought to have been so
* invested, and the future terms of settlement*— for all the diri»
4 deads falling flue betufeea these two dates*— and for all hazard
4 that the money runs in its present precarious state. This, re*
' mefober, will be your debt to us due by you, conjunctly and se.
4 verally.
4 You express doubts as to the rigjit of the fee of the fund* in
4 your handsw Upon what, ground this opinion of yours rests,
4 after the opinions <jf eoynsel which you have seen, we cannot
' tell But if the counsel was. wsong, and you right, it can do
* no harm to vest, the money in Government stock* .We are,' &c.
On the 31st the trustees again took the advice of counsel, and
craved thi& answer : — ' There is no ground whatever on which
4 tipe memorialists can be required tw lay out the money in the
4 public funds, or in which their non-compliance with the demand
4 of those who hold themselves out as the only parties interested,
4 can entitle these persons to threaten them with the penal con*
4 sequences mentioned *n the latter. I think, therefore, that they
< shquld just leave the money in the bank* where it has all along;
4 been placed, — that they should proceed with their process of
4 multiplepoinding, and that they ought to combine with this a
4 conclusion for exoneration.'
326 CASES DECIDED IN THE
In consequence of this opinion, (which, together with the me-
morial, the trustees communicated to the agents of the pursuers,)
they wrote to the latter, declining to invest the money in Govern-
ment stock, and that they meant to be regulated by the orders of
the Court of Session. Accordingly, on the 12th of June, they
raised a summons of multiplepoinding and exoneration, which
was executed on the 23d ; and the pursuers, on the 2d of July,
brought a summons of count and reckoning, on the dependence
of which they arrested the funds in the Glasgow Bank.
The Lord Ordinary having found that the pursuers were the
residuary legatees, preferred them to the fund in medio, which
was paid to them on the 9th of August 1822 ; but repelled various
objections which were made to the administration of the trustees,
and found them entitled to expenses.
The pursuers then brought an action of damages, in which,
founding on the will — the relative deed of agreement — the requisi-
tion to invest the money in the Government stock — the letter of
16th May — the refusal of the trustees to do so— and the loss which
they had sustained in consequence of the rise of stocks between
the date of the requisition in May 1821, and the payment of the
money in August 1822, they concluded that the trustees should
be ordained ' to make payment to the pursuers of the sum of
€ i?3000 sterling, or of such other sum as shall be ascertained to
' be the loss and damage sustained by them through the refusal
* on the part of the defenders to vest the funds in Government se-
' curities, as they were required to do by the pursuers, and by
' every person who had, or ever could have, any interest in them.'
In defence against this action the trustees contended,
1. That as they were bound to dispose of the money in the
precise mode pointed out in the will, and as they were expressly
ordered by the testator ' to invest in heritable property or bank
' securities the nett proceeds of the estate, after paying the above
* legacies, for the benefit of the residuary legatees, my parents,*
which they had done, and as there was no authority to purchase
Government stock, which was a security of a fluctuating and spe-
culative nature, they would have been acting contrary to the
will, if they had complied with the requisition of the pursuers.
2. That the pursuers were barred personali exceptione from
demanding damages on account of not investing the funds in
Government stock, because they had bound themselves by the
deed of agreement to confirm the will of the testator in all re-
spects ; and, besides, they had arrested the funds, and so tied up
the hands of the trustees.
S. That supposing they ought to have invested the money
COURT OF SESSION. 887
in Government stock, still, as they were gratuitous trustees, acting
bon& fide, and under the advice of counsel, they could not be
made liable in damages for a mere error in judgment ; and,
4. That if any liability attached to them, it could only be on
the footing of not having paid the money to the pursuers ; that
as they had not bound themselves, and had not undertaken to in-
vest the money in Government stock, they were just in the situ-
ation of debtors refusing payment, and therefore could not be
liable for more than the lawful interest on the sum in their hands.
To this it was answered,
1. That by the terms of the will the pursuers were the abso-
lute proprietors of the whole free fund, and of this the trustees
had been made aware by the opinions of counsel, so that they
could not pretend ignorance ; and at all events, as every person
interested had subscribed the letter of the 16th of May, they
were not entitled to withhold payment of the money ; and,
2. That as they had acted illegally in so doing, they must be
liable for the actual loss and damage which the 'pursuers had
thereby sustained.
The Lord Ordinary found, * that the facts and averments estab-
' lished and admitted are relevant to infer damages against the
' defenders ;— that the defenders are liable to the pursuers in the
' loss and damage sustained by them through the refusal. on the
6 part of the defenders to vest the funds in the Government secu-
' rities, as they were required to do ;' and remitted to an account-
ant ' to inquiretinto, and report to the Lord Ordinary upon the
* actual loss and damage that have arisen to the pursuers from
' the difference between the prices of the Government funds at the
* two periods condescended on by them.9
The trustees having reclaimed, the Court adhered.
Loan President.-— This is not the case of a mere error in judgment.
There was a breach of instructions. , All parties interested gave no-
tice that the money was required for the special purpose of invest-
ing it in the stocks. The words of the will appear to me perfectly
clear, and to bestow upon the pursuers an undoubted right to the
residue. It was to be at their entire^ disposal, and it was only in
the event of their not making use of it during their lives that it was
to go to their children. It has been said that there can be no other
damage for non-payment of money except interest. That may be
true where the person stands in the situation of a proper debtor ;
but if I have money in the hands, for example, of Sir William
Forbes and Company, and I order them to invest it in Government
stock, which they fail to do, have I no claim beyond the mere interest
of the money ? I apprehend that I am entitled to be indemnified for
the loss which I may thereby sustain. It is also said that the money,
328 CASES DECIDED IN THE
by being placed ia tbe Glasgow Bank ia name of the factor, was ae-
cqred in terms of tbe will. That, however, was not the nature of the
security contemplated by.tb6 tedWtqr,
Lord BAtORAY^-Tbia is a perfectly clear case. In genoad* the
Court do not subject trustees in damages where they merely commit
an error b judgment ; but here the trustees must have seen, both
from the terms of the will and the opinions of counsel, that the fee
was in the pursuers, so that it was impossible they could have been
in good faith in refusing payment of the money. But if they had
had any doubt, it must have been removed by the letter of the
16tb of May ; and the question comes to be, whether they had a right
to resist the demand there made? I apprehend that they had not.
They were told that the money was wanted to be invested m the
public funds, and they refused to give it up, alleging that it was
placed on a bank security in terms of the will, when it was lying
deposited in bank in the name of tbe factor. But that was not tbe
security mentioned in the will. The case, however^ turns entirely
on the refusal to obey the requisition made, by all concerned, and in
that view I think the interlocutor well fpupcfed*. .
Lords Craigie and Gillies concurred.
Tod aad Weight* W. 5«-t*Su P. Hrwimqn,— Agento.
No. 193* . Mrs. and Miss Kenny, Advocators.— Jameson*
J. Baldebston, Respondent — BaircL
Feb. 9. 1827. Expens€**~*The. Lord Ordinary r while he advocated -and as-
Q r soilzied in an advocation at tbe instance of Mrs~ and Miss Benny.
2d Division. J*
Ld. CringieUe. found no expenses doe bat those of the Answers to a representa-
M'K. tkm. The Court adhered..
J. Balfoto, W. S<— W. Waddell, W. S.— Agents.
No. 194. William Mure, Esq. Pursuer. — Cpekbum.
Geoege Railton, Defender. — Greenshields.
Prom*** Jwj G»«rf.— Hddnot imperative to remit to the Jury Court ai action
of damages for breach of contract, and agtinet which there were defences, stated
in paint of law.
Feb. 10. 1837. Ox the 18th of May 1885, Mr. Mure of Cakrwtlt let Ca the
1st Division, defender, for .one year, &* mn ■* Lugton Bridge, on the road he-
Lord Eidin. tweew Glasgow and Irvine ; and in the- missive of lease there was,
H. inter alia, the following stipulation: — * The tenant hereby binds
4 and obliges himself to keep a dean commodious house for the
* benefit of the public of all ranks and descriptions, and not less
* than one chaise and good post-horses for the ready conveyance
' of persons posting either with their own carriages, or requiring
c the use of a post-chaise or chaises, and also to furnish the house
' properly with all the necessary additional articles of furniture
« it may require/ &c.
COURT OF SESSION. m
Baitton took poasewoojaod oominued.for one year ; end, after
bit removal, Mr. Mure brought an action, in which he alleged
€ that the said George Bailton, defender,, failed, to implement the
' whole conditions and stipulations come under by him in terms
' of the said missives ;— in particular, he did not at all times keep
4 even one chaise and good post-borses for the ready conveyance
1 of persons posting either with their own carriages, or requiring
c the use of a post-chaise or chaises ; during a considerable time
* there wer$ no post-horses at all, and on .several occasions tra-
' Vellers were obliged to have. the inn on foot, or wait until they
' could procure horses from Beith or elsewhere;— that, by the
* said George Bailton's thus failing to provide the means of con-
' veyance, the resort of travellers to the said inn, and along the
' said road, was seriously diminished, "because travellers, being
' aware of there being no mode of conveyance to carry them for-
* ward, took other roads, though more circuitous* where they
' could be accommodated with posting ;~»that the said defender
( has thus committed a breach of the agreement betwixt him and
4 the pursuer, constituted by the said missives, to the manifest
* injury and damage of the pursuer.* He therefore concluded,
that the defender should be ordained 'to make payment to the
' pursuer of the sum of £%50 sterling, or such other sum as our
' said Lords shall determine to be the loss and damage sustained
* by the pursuer, in consequence of the foresaid breach of agree-
* ment by the defender.1
In defence against this action, the defender pleaded,
1. That as the missive was not stamped, and was improbative,
it was ineifeQtual,
2. That as Mr. Mure resided in the immediate neighbourhood,
and never objected, during the currency of the lease, to the want
of carriages and horses, he was barred personal! exceptione from
bringing an action of damages on that ground ; and,
3. That the allegations in the summons were not well founded.
. The pursuer having moved that the case should be forthwith
remitted to the Jury Court, the defender objected that it Was not
imperative to do so ; that this was an action, not for a delict or
quasi delict, but for a mere breach of contract ; and that it vas
in the discretion of the Court either to send this case to the Jqry
Court or not
To this it was answered, That the summons concluded simply
for damages, and arose out of a breach of contract, which was of
the nature of a quasi delict; and it was therefore imperative^ to
remit the case to the Jury Court.
' The Lord Ordinary having heard parties' procurators upon
330 CASES DECIDED IN THE
* the motion made by the pursuer to remit this case to the Jury
( Court,' appointed him to lodge a condescendence in terms of the
statute, and the Court adhered.
Lord President. — It is in the discretion of the Court either to send
this case to the Jtiiy Court or not ; but there are pleas in law in this
case, which, whether well founded or not, ought to be decided in the
first place, and, if sustained, may supersede the necessity of such a
remit.
Lord Balgray— One of the defences is, that the document libelled
on is not stamped, and the effect of that must be decided before go-
ing to the Jury Court.
Lord Craigie. — This is not a case which must of necessity be sent
at this stage to the Jury Court. If it were so, every action arising
between a landlord and tenant would require to be instantly sent
there ; but that is not the case.
Lord Gillies. — Unless there be pleas in law which it is proper first
to dispose of, and if it appear that a case, must ultimately go to the
Jury Court, the sooner it is sent there, the better.
J. G. Hopkirk, W. S.— N. W. Robertson,— Agents.
No. 195. James Tait and Others, Pursuers. — Jeffrey— RutherfurcL
Earl of Lauderdale, Defender. — D. qfF. Moncreiff— Gibson-
Craig.
Title to Purtue.— An action of reduction of a decree of $e Justices of the Peace,
ordering a road to be shut up, and of declarator of right to it having been
brought, among others, by several parties, describing themselves as servants-
Held that unless they were householders they had no title to pursue.
Feb. 10. 1887. The Earl of Lauderdale obtained a decree of the Justices of
1st Division. Peace and Commissioners of Supply for the county of Berwick,
Lord Newton, authorizing him to shut up a road or footpath passing through
s* his lands near to Thirlstane Castle, and approving of another
line of road which he undertook to make in place of the former
one. Thereafter a summons of reduction of the decree, and of
declarator to have it found that the original road was a public
parish .road, and ought not to be shut up9 was brought against
his Lordship at the instance of nineteen parties, of whom ten de-
scribed themselves as being ( servants' in Lauder and its neigh*
bourhood, — two of them as being herds,— and the others as ten-
ants residing in the vicinity, or as being merchants in Lauder.
Against this action his Lordship pleaded these preliminary de-
fences,
1. That the pursuers'1 agent had produced no authority for cany-
COURT OF SESSION. 881
ing on tins action at the instance of the different parties named
as pursuers, and that several of the pursuers utterly disclaim it. .*
2. That almost all the parties named as the pursuers are servants,
who may be in one parish one half of the year, and in a differ-
ent part of the country during a different part of the year ; and
Done of the pursuers have either right or title to insist in the pre-
sent action ; and,
3. That all the pursuers are barred from pursuing the action,
first, by having acquiesced in the decree for shutting up the road,
and in the expensive operations which the defender, in terms of the
decreet, carried into execution ; and, secondly, if any of the de-
fenders are burgesses, they are farther barred by their repre-
sentative, the chief magistrate, having approved of and confirmed
the decree*
The Lord Ordinary ' repelled the first and second of these de-
* fences, and, with regard to the third defence, that the pursuers
' are barred from pursuing the action, for the reasons there stated,
' reserved the consideration thereof till the peremptory defences
' shall be pleaded, and the cause heard upon the merits.'
Lord Lauderdale then reclaimed, and contended chiefly that
the pursuers who were described as servants had no title or in-
terest to insist in the action ; that they had no fixed settlement ;
and that accordingly, since the action had been raised, several of
them had left that part of the country ; so that it was plain that
their names had been merely inserted in the summons to give the
appearance of a party, as none of the respectable members of the
community would consent to appear.
To this it was answered, That the public in general, and parti-
cularly those who resided in the neighbourhood, had both an in-
terest and a title to resist the shutting up of any public road;
that there was no disqualification of servants from maintaining
such a right ; that the road which it was proposed to substitute
in place of the one in question was longer and more circuitous
than it; and that a servant, both in the exercise of his lawful oc-
cupation as a servant, and in reference to his own private con-
cerns, either in going to kirk or market, had a substantial interest'
and title to insist that the shorter and more convenient road should
be kept open ; but that, in point of fact, many of them were cot-
tagers and farm-servants or labourers.
The Court found, ' that such of the pursuers, designed ser-
' vants, as are householders, have a title to insist in this action ; and,
' with this explanation, refuse the prayer of the note, and adhere
' to the Lord Ordinary's interlocutor reclaimed against'
382 CASE8 DECIDED IN THE
Loan Baloray.— The question here i*j Whether the parties wbo ap-
pear are entitled to puniue this reduction ? The first defence is net
well founded, because no disclamations hare been produced ; and the
presumption is, that an advocate who appears for a party is duly au-
thorized to do se. With regard to the second defence, I do not
think it is well founded as to those who are tenants and residenters;
but I doubt extremely whether a mere servant is entitled to insist in
such an action* If his master has agreed, or does not object* to the
alteration on the road, what right or title baa be to resist it, and put
fiisssulf in opposition to his master? The last defence maybe well
founded, but it Is net yet ripe for decision.
Lord CRAlGis«^*This road is alleged to be a public kirk and market
road, and I apprehend that any member of the community, who can
show a sufficient interest, is entitled to resist any alteration.
Lord Gillies. — I agree in that general proposition ; but I do* not con-
sider that persons who are merely servants have either such an inter*
eat er title as to give them a right to set aside this decree.
Lord President*— If they be merely servants, hired from term to
term, and living in family, I apprehend that they have no title ; but
if, on the other hand, they be cottagers, who hire themselves out as
farm-servants or labourers, I think that they have a title.
G. Scoxiy— Glbsok-Craios and Wardlaw, W. S^Agenfts;
No. 196. C. Fx&ara, (LtellV Trustee,) Pursuer.— M ilkr*
Dr. Yockg, Defender. — Skmt*
Proces*-rProof.— Held not competent to insist for production of private plans- be-
longing to one of the patties in a cause in modtun probation!*.
• ■ * .....
Feb. 10. 1827. FiRttiKB, as trustee for the creditors of Geotge Ljeli of Kio-
l d Be^' *l*v*ng brought an: action of declarator of property against
Lord Eidin. " Dr. Ydung, and a condescendence having been ordevedV the'de*
H. fender moved the Lord Ordinary to grant hem a diiigence lor re-
covery of certain judicial pfans, and also of certain private plans)
in the hand* of the pursuer or his constituent relative to the sab*
ject-maiter of dispute* in order to enable him to suppdrt hinder
fence*. This was resisted by the pursuer, safinTa* regarded the
private plana, which he contended were private property, *** **
all events were not that species of evidence? which could have any
effect on the decision of the cause, as they had been made? up
merely as a sketch or vkKmnafor temporary purpose*
The Lord Ordinary ' granted diligence at the defender's in*
( stance, an craved* for recovery of the judicial plans of the estate
' of Kinneff, but refused the application quoad the private
COURT OF SESSION. 888
< plana called for, belonging to the pomer? jmd the €btnt ad-
hered.
ScotT and Booo, W. S—J. Ammort, W. S^Agents.
C. Tait, Pursuer. — Matheson — Tail. No* 197
J. MjLcnms* Defender. — SoL-Gen. Hope — Ivory.
Expense*.— Tm* was a special case, relative to a claim of ex- Feb. ia 1897.
peases by tb? pursuer. The Lord Ordinary refused them, «d ter DgrmMm
the Court adhered* Lord Eldte.
C Tait, W. S— R. Mackenzie, W. S-— Agents,
Janet Doxxan, Suspender. — A. M'NeilL No. 198.
J. Murdoch, Charger. — Penney.
Legal DiUgence— Husband and Wife.—k charge having been given to a married
woman on a bill accepted by her, and the charger having judicially abandoned
the charge against her, and passed from it by a marking on the letters of horning,
a bill of suspension refused.
Jaket Dollar and her husband having granted a bill to Mur- Feb. 10. 1827.
doch, on which he charged them, they presented a bill of suspen- i„ plvlM0K.
sion, in which she contended, That as she was a married woman, jjyuchamber,
the bill was not obligatory upon her; and her husband having LordBalgray.
made a reference to the oath of the charger, he deponed nega- H*
tire. In the answers to the bill the charger abandoned the dili-
gence as against Dollar, and the Lord Ordinary then refused the
hill. She reclaimed, and contended, That as the Bill-Chamber was
not a Court of record, she had no protection against the further
execution of the diligence ; but the charger having exhibited the
letters of horning with a marking on the back, abandoning the
charge against her, the Court adhered.
J. Nairne, — D. Smith, — Agents.
884 CASES DECIDED IN THE
No. 199. J. Watt, Pursuer.— Jeffrey.
R. M'Intosh, Defender. — Skene — Maidment.
Process— -Execution, — Objection to an execution repelled, that it did not contain
the designations of the parties, or mention the date of the summons, it being
written on a blank sheet originally stitched to the summons, and bearing refer-
ence to the foregoing summons.
Feb. 10. 1827. In an action at the instance of Watt, it was pleaded by the de-
2d Division, fender M'Intosh, as a preliminary defence, That the execution of
Lord Newton, citation, which "was written on a separate sheet of paper from the
summons, but stitched to the end of it under the original cover,
did not contain any designation of either the pursuer or defender,
and did not specify the date or signeting of the summons to which
it was meant to apply. To this it was answered, That where the
leaf or sheet on which the execution was written was one of the
blank leaves attached to the summons, it was quite sufficient if it
referred to the foregoing summons, it being the universal practice
to write executions on the blank sheet at the end of the summons,
and in this form.
The Lord Ordinary repelled the defence, and the Court unani-
mously adhered.
Campbell and Mack, W. S.— J. Jameson,— Agents.
No. 200. , Miss Jane Jeffreys and Mandatory, Petitioners.— FF. BdL
Record* Deed, Preservation 0/.— Court remitted to the Depute Clerk Register to
take steps for restoring a mutilated deed.
Feb. 10. 1827. This was an application by Miss Jeffreys, setting forth that a
2d Division, deed of settlement, executed by her deceased uncle in 1809, had
F« been very much mutilated, and become in many parts nearly ille-
gible, from having been deposited in a damp place, and praying
for a remit to the Keeper of the Records of the Court of Session,
or other skilled persons, to take such steps as might be practicable
for adjusting and putting together the mutilated parts, and ren-
dering the deed legible.
The Court remitted to the Depute Clerk Register (whom tbey
considered the proper person to intrust with matter! of this kind)
c to take such measures, and employ such persons, as may seem
' to him most fit for putting together the torn or mutilated parts
' of the deed ;' and the Depute Register subsequently reported to
the Court, that the whole of the deed had been restored and ren-
dered legible, with the exception of part of one of the witnesses*
names, and the word ' witness' attached thereto.
Benton and Grant, W. S. Agents.
COURT OF SESSION. 835
E. Blackett and Others, Pursuers.— More. No. 20 L.
W. Berrt and R. Forster, Defenders.— Baird— Jameson.
Expenses. — The Lord Ordinary found the defenders entitled Feb. 10. 1827.
to certain expenses in the course of preparing the cause. The 2d DlVfgI0y
Court recalled his Lordship's interlocutor, and reserved the ques- Lord Cringle-
tion of expenses. tie*
Horkr and Ross, W. S— Tod and Hill, W. S.— Agents,
0
»
A. McCartney, Manager of Commercial Bank, Pursuer.— More. No. 202*
M. M'Kknzie, Defender.— Robertson.
ProcffM.— Diligence to recover writs.
This was an objection to the opening a sealed packet of ex- Feb. 10. 1827.
cerpts of correspondence, as not falling within the terms of the 2d d1FIM0M
diligence for recovery of all correspondence mentioned in a con- Lord Cringle-
tie.
descendenoe, which was not very clearly expressed as to this point.
The Lord Ordinary had found that the defender was not entitled,
hoc statu, to see this correspondence ; but as no objection had been
taken to the call for these productions when first made before the
commissioner, nor till after some procedure by the commis-
sioner in taking the excerpts, and after an interlocutor of the
Lord Ordinary had become final, authorizing the haver to pro-
ceed with taking the excerpts as begun by the commissioner, the
Court appointed the seals to be opened, reserving all objections
to the production of particular letters.
J. A. Campbell, W. S.— IL Macques*, W. S. — Agents.
W. Campbell, Pursuer.— Sol.-Gen. Hope—Tait. No. 203.
R. Baibd, Defender. — D. ofF. Moncreiff—Shaw.
Muter and Servant — Partnerthip.—A written contract of service, not stamped
nor tested, having been entered into by a minor with a party trading under the
firm of a company in which there had been originally several partners, but -of
which he was now the sole. partner, held that the contract was binding.
In the year 1796 a company was formed under the firm of Feb. 13. 1827.
Hugh and Robert Baird, as engineers, in the neighbourhood of ]8T Division.
Glasgow, consisting of several partners, and in particular of two Lord Medwyn.
of the above names. Between that period and the 12th of Jan u-
ary 1811, all the partners, with the exception of Robert Baird,
gradually retired, and of which notice was given in the Gazette.
vol. v. y
336
CASES DECIDED IN THE
From that period Robert Baird continued to carry on business un-
der the original firm till 1822, when it was alleged that he assumed
his son John Robert Baird a partner ;— but as this allegation was
disputed, it was not taken into consideration in the ultimate deci-
sion of the case.
On the 7th of April 1824 the father of the pursuer addressed
a letter to the foreman of H. and R. Baird, requesting employ-
ment for his son, and on the 10th of the same, month the follow-
ing agreement was entered into :-—
• Gentlemen, — I hereby agree and bind myself to serve Messrs.
Hugh and Robert Baird, iron-founders and engineers, or those
appointed by them, faithfully and diligently. as a loam-moulder,
and the whole affairs connected therewith, or relating thereto,
and that for and during the space of two years from this date,
which is the period of my agreement ; and during which agree-
ment I shall not absent myself, desert, or amuse myself during
the ordinary hours of labour, (sickness excepted,) without leave
asked and obtained from Messrs. Hugh and Robert Baird; and
for eaah absent day, or part of a day, without leave so obtained,
I shall forfeit two shillings and sixpence, or, in the option of my
masters, serve two days, at the expiration of this agreement, for
each day, or part of a day, I so absent myself. Further, I shall
not embezzle, waste, or destroy any of the goods or materials of
my masters, or reveal or make known any of their secrets, or
be accessory to idleness or mischief done in the shop, under a
penalty of five shillings for each offence.
' P. S.— Agreeably to this agreement, both parties bind them-
selves, viz. John R. Baird for H. and R. Baird on the one
part, and William Campbell, son of George Campbell, at pre-
sent manager of the Glasgow Foundery, on the other part ; it
being understood and agreed upon that H. and R. Baird pay
William Campbell twenty-two shillings weekly in name of wages,
being the wages fixed upon/
This contract was signed before witnesses, and the pursuer en-
tered to his service, and continued to work for several months, when
he deserted, alleging that he had been maltreated. A petition
was then presented to the Justices of Lanarkshire by H. and R.
Baird, praying to have him ordained to return to his service, and
to find caution to implement his agreement, under the pain of im-
prisonment. After a proof, and a reference to the oath of Mr.
Baird, the Justices decerned in terms of the prayer of the petition
against Campbell, who immediately, and before the decree was
extracted, brought an action of reduction of it, and also of the
above agreement. An objection having been taken to the com*
COURT OF SBSSIOtf. S87
petehcy of a reduction of a decree which had not been Extracted,
the Court, on the report of Lord Meadowbank, superseded that
point till the issue of the reduction of the agreement, and remit-
ted to Lord Medwyn to proceed accordingly, (see ante, Vol. IV.
No. 201.)
In relation to the validity of that agreement, several pleas
were maintained by the pursuer, buthe rested chiefly on the ground,
1. That as all the partners of the company of H. and R. Baird
had retired with the exception of the defender Robert Baird, the
company was thereby dissolved ; that it was not lawful for him
thereafter to carry on business as if the company were still in ex-
istence ; and that the agreement having been made, not with him
as an individual, but with the company of H. and R. Baird,
which in point of fact had no existence, it was null and void.
2. That as the agreement was neither tested nor stamped in
terms of the statutes, it was ineffectual ; and,
& That as he was a minor when he entered into it, and it did not
bear to be with consent of his father, it was not binding upon him.
On the other hand, it was maintained by the defender, -
1. That nothing was more common than for merchants and
traders to continue to carry on business under firms, although the
original partner* were either all or many of them dead or retired ;
that these firms obtained a good will, which was of itself ex-
tremely valuable, and there was no rule of law by which the sur-
vivors or remaining partners were bound to abandon tbem ; that
although it might be improper for a single individual to com-
mence business under the firm of a company, and this might be
argued to infer a fraud against the public, yet this was entirely
different from the case where a bona fide company had been ori-
ginally established, and the majority of the partners had gradually
retired and made over their shares, either to one or more of the
remaining partners; that no fraud was alleged to have been
committed in inducing the pursuer to contract with the defender
under the original firm, nor did he allege any injury ; and that
if his plea were available, it must have the effect to annul every
contract entered into with parties trading under firms which did
not represent the real partners in the concern, but which was a
doctrine never hitherto recognised ; and,
2. That as the agreement was not an indenture made with an
apprentice, but an ordinary contract of service, and as the pur-
suer was by profession a loamrmoulder', and had homologated the
transaction, his pleas as to its being improbative, and being in mi-
nority, were unfounded.
The Lord Ordinary having reported the question upon Cases,
y2
838 CASES DECIDED IN THE
the Court unanimously assoilzied the defender, and found
entitled to the expenses both of this and of the former discussion.
The Judges were unanimously of opinion, that as it was not alleged
that any fraud or deception had been practised on the pursuer, his
first plea was entirely unfounded ; that there were numerous com-
panies in existence trading under a firm originally assumed, where
none of the partners were alive ; and that' there were' many others
which earned on business under a general* designation, such, as the
Carron Company, where the partners are duly fluctuating, but it had
never been supposed that the contracts made by them were on that
account null and void ; and Lord Gillies remarked, that on this point
he could not discover even a ratio dubitandi. Their Lordships were
j also of opinion, that as this was a mere contract* of service, it did
;' not require to be stamped or tested^ and that the plea of minority
was inapplicable to such a case.
Pursuer's Authorities.— {\ .)— Marshall, Jan. 20. 1815, (F. C.) j 2. Bell, 641 ; Dong-
las, Heron, and Co. June 16. 1793; 2. Bell, 646; Nairn, Nov. 25. 1795;
2. Bell, 626.— (2.)— 1681, c. 6. -(a)— 1. Erek. 7. 33 ; Hume, June 28. 1671,
(5688.)
Defender's Authorities.— (2.*— Rymer, July 19. 1781, (5726); 55. Geo. 1U. c. 184.
Exemp. voce Agreement; 1. Erak. 7- 38; Heddle, June 5. 1810, (F. C.)
D. Scales, — A. P. Henderson,— Agents.
■ ■
r
No. 204. J. Smith, Advocator. — D. ofF. Mancreiff—Whigham.
P. Miller, Respondent.— Thomson — Cuninghame.
Triennial Prescription. — Held that the triennial prescription does not apply, to the
price of a bullock alleged to have been purchased for family consumption*
Feb. 13. 1827. The only general point involved in this case was, whether the
1ot"divi8ion. triennial prescription applied to the purchase of a bullock which
Lord Eidin. was bought in order to be slaughtered for the use of the respond-
H# enVs family ? The Sheriff of Dumfries-shire repelled the defence;
but. on advising a reference to oath, he pronounced judgment
on the merits against Smith, (the original pursuer,) who brought
- an advocation, in which the Lord Ordinary repelled the defences,
and decerned in terms of the libel. Miller having reclaimed, the
Court, while they -were perfectly clear that the defence of pre-
scription was unfounded, and declined to listen to any answer to
it, altered on the merits, and remitted simpliciter.
E. Hoggan, W. S. — R. Rutherford, W. S.— Agents.
COURT OF SESSION. 889
Mrs. Mackenzie and H. Mux no, Pursuers.— Z>. ofF. Mancreiff No. 205.
— Buchanan.
Magistrates of Dingwall and Others, Defenders.— JV^h^
—Afenzics.
»
Prwxss—G. Geo. IV. c. 120'.— Held competent for the Lord Ordinary, after the
time for lodging a revised ^condescendence has been prorogated, to order the
former papers to be withdrawn, and a new condescendence to be given in, and to
allow additional time for doing so, with a view to putting the case in proper shape.
Thy pursuers brought an action relative to a right of fishing Feb. 13. 1827.
against the Magistrates of Dingwall, and also against Mrs. Munro iw Dmaioir#
and others, in which the Lord Ordinary, prior to the Judicature
Act, appointed the pursuers to lodge a special condescendence,
and the defenders to see and answer. On the 28th of January
1826 his Lordship renewed the order, and appointed the conde-
scendence to be lodged, in terms of the. Judicature Act, within 14
days, and the answers to be given in within 14 days thereafter.
Again, on the 18th of February, he appointed answers to be
lodged at the second boxyday of the then ensuing vacation ; and
oft the 8th. of July be appointed the parties to revise their con-
descendence and answers, and to lodge their papers, with notes of
pleas, by-the second box-day in the autumn vacation, and the first
sederunt-day in November. These papers were accordingly
lodged ; but on the 20th of November his Lordship * appointed
* parties' procurators to reconsider the papers, and within three
* weeks to lodge the revised condescendence, and relative note of
* pleas in layr, and on or before the box-day in the Christmas re-
* cess, to lodge the revised answers and relative note of pleas in
' law.' On the 16th of December he * prorogated the time for lodg-
c ing the revised condescendence and relative note of pleas in law
* till the third sederunt-day in January next, and till three weeks
' thereafter to lodge the revised answers, and relative note of pleas
' in law.' When the time was just expiring, the pursuers enrolled
the case on the 18th of January 1827, and ' represented to the.
* Lord Ordinary that it would be of great advantage to the par-
' ties, If the pursuers were permitted to state their case against
' the Magistrates of Dingwall in a separate condescendence, and
* also to give in a separate condescendence against the other de-
< fenders, and moved the Lord Ordinary to grant permission for
* such separation.' His Lordship accordingly 4 allowed them to
' do so, and to disjoin and separate the condescendences formerly
' ordered,' and appointed them to be lodged within ten days.
it this order the Magistrates of Dingwall and the other
340 CASES DECIDED IN THE
defenders reclaimed, and contended, That as it was in truth a
second prorogation of the time for lodging the condescendence,
it was incompetent under the l?th section of the Judicature Act.
To this it was answered, That it was not a prorogation, but
was an order for putting the case in a new and correct shape,
which it was competent for the Lord Ordinary to do at any time
before the record was actually closed.
The Court refused the reclaiming note.
Lord President. — The order is not incompetent. Till the last mo*
ment of closing the record, the Lord Ordinary may put the c*se into
such shape as he thinks most proper for the preparation of the cause.
Suppose that papers hare been lpdged, revised, and have been laid
before the Lord Ordinary, if he think these papers irregular, or thai
the cause has not been properly prepared, is it not competent for
him to order the papers to be withdrawn, and appoint new ones to be
lodged ? Whether he is right or wrong in doing so, is another ques-
tion ; for the point before us is, whether he has the power to do so ?
and I apprehend that he has so. Indeed, in preparing a cause we
must trust very .much to the Lord Ordinary. It is not correct to
say that the order which has been issued here is a prorogation ; it is
to the effect of making a new case, and to prevent a confusion of
parties.
The other Judges concurred.
H. Macqueen, W. S. — Horns and Ross, W. S. — Agents.
No. 206* F. Smith and Others, Pursuers. — Murray — Jameson.
R. Aitken and Others, Defenders. — Jeffrey — Menzies.
Sak.-rThQ seller oi an heritable property is bound to make up a valid title at hia
own expense, unless the purchaser has explicitly consented to take the title as it
stands in the person of the seller.
Feb. 13. 1827. The pursuers bad a few years ago purchased a property
2d d from Aitken, (whose trustees the defenders were,) by a con-
Lord Macken. tract of ^^ binding Aitken ' to grant in favour of the said
zie. < Peter Smith, and his foresaids, a disposition or other deed or
' deeds necessary for vesting the full right of the said sub-
jects now standing in the person of the said William Aitken
4 in favour of the said Peter Smith ;' and they now insisted in
an action concluding to have the sale annulled, in consequence of
the seller being unable, as they alleged, to furnish a complete title.
It was reported, however, by Mr Richard M'Kenaie, writer to
the signet, on a remit from the Lord Ordinary, that although
Aitken had no effective feudal title to the property in his person,
• 0
COURT OF SESSION. 8tt
jet he had vested in him such a right as would enable him to
make up an effective feudal title, but that this would be attended
with very considerable expense ; and the (Question then arose, Whe-
ther the purchasers, by the terms of the missive, and by their
conduct appearing from the correspondence, and as admitted by.
them on a reference to oath, had agreed to take the title to the
property as it stood in Aitken's person, so as to throw upon them
the expense of making up a complete title ?
The Lord Ordinary being of opinion that they had agreed to
this, appointed them, before further answer as to the sufficiency of
the tide, to say whether they were willing to pay for the expense
of a title made up as recommended by Mr. IVTKenzie.
Against this interlocutor the purchasers reclaimed ; and the
Court holding that there was nothing in their conduct which im-
plied a waiver of the obligation lying on the seller by law to
convey to them a complete title, found that the defenders must
give a valid title at their own expense, and so far varied the in-
terlocutor of the Lord Ordinary.
Their Lordships were agreed on the general principle, tbat a seller was
bound to give a complete feudal title, unless the purchaser had spe-
cifically agreed to take the right as it stood in the seller's person ;
and it was stated that in Dick v. Donald, lately reversed by the
House of Lords, this Court had not proceeded on any principle con-
trary to that doctrine, but on the ground that the title there offered
was a good title ; and in regard to the present case, that the pur-
chasers had not waived their right ; and that even if the stipulation
In the contract were construed to mean that the seller was to con-
vey merely the right as it stood in his person, he must be held to
have warranted that right to be a ' fall right* as there set forth.
W. and A. G. Ellis, W. S R. S. Wilson, W. S— Agents.
Mrs. He atlib or Logan, Petitioner.— <SaJ.-Gm. Hope — No. 207.
• A. ATNeiU.
W. Cathcakt and Others, Respondents. — Jeffrey — FvUerton.
Pureni mut Child.— HcW that a mother waose husband was dead, and had who mar-
ried again, was entitled to access to her minor daughter by her first marriage in
the custody of her curator ; but that, in the peculiar circumstances of the case,
this could only be allowed in presence of a third party.
The petitioner presented a petition and complaint to the Court, Feb. 14. 1827.
stating that she was the widow of the late Hugh Cathcart, Esq. l8T"^i
by whom she had four children ; that the youngest of them, Miss d.
Caroline Isabella Cathcart, had lately made choice of curators,
BION.
\
848 CASES DECIDED IN THE
l
of whom Mr. William Cathcart, her uncle, was one ; that that
gentleman had placed her with her aunts in Edinburgh, and
being in a delicate state of health, the petitioner had been ex-
tremely desirous to have access to her, but that this had been
.refused. She therefore prayed that the Court should grant an
order ' to permit the petitioner to see her daughter at all con-
' venient times/ In answer to this complaint, it was stated that
the young lady was in extremely bad health ; that the petitioner
had married a second time, and that, from peculiar circumstances
of a domestic nature, it was absolutely necessary that any inter-
view should be avoided between the young lady and the peti-
tioner ; that if any interview was to take place, it might be pro-
ductive of dangerous consequences, and that the respondents had
never refuse!! access to her on all proper occasions ; but that the
young lady had declined to see the petitioner. The Court, be-
fore answer, ' remitted to and requested Dr. Abercrombie to con-
' sider the present state of the health of the said Caroline Isabella
' Cathcart, and to report to the Court whether it is safe and
' proper in his opinion, in reference to her health, to see her mother
* at present, either in or out of his presence/ In consequence of
this remit, Dr. Abercrombie (who was her usual medical attend-
ant) reported ' that the said Caroline Isabella Cathcart is still
* in a very delicate and precarious state of health, requiring the
* utmost care and attention. I do not, however, see any objection
- ( to her being visited by her mother; but, under all die circum-
' stances of the case, I earnestly recommend that the interview shall
' take place in the presence of a third person/ An order was ac-
cordingly issued in terms of this report; and the petitioner having
thereafter moved for the expenses of the complaint, the Court
found them due to neither party.
The Court were unanimously of opinion that the petitioner was en-
titled to have access to her child ; but, in the peculiar circumstances
of the case, and particularly as the young lady was in bad health,
that any order to that effect roust be qualified in the manner sug-
gested by Dr. Abercrombie.
J. G. Hopkirk, W. S — Hunter, Campbell, and Cathcart, W. S. —
Agents.
COURT OP SESSION. 348
T. Msggxt, W. S. Pursuer — Cockburn^-Brownlee. No. 208.
Bev. A. Brown, Defender.— Sol.-Gen. Hope—W. BdL
Reference to Oath.— A party having referred to the oath of his opponent merely
whether he was an onerous assignee, and he having deponed that he was— Held
not competent to inquire whether he was a bona fide assignee.
An action having been rased by a Mr. and Mra. Brown Feb. 14. 1887.
against the defender, they obtained decree against him for about ln divi8mw#
«£100, for which he granted bills, and for the payment of which Lord Eldin.
Mr. Couper, W. S. became bound as cautioner. <The defender D-
having failed to pay these bills, decree was obtained against Couper
under his cautionary obligation, and ultimate diligence having been
raised both against him and the defender, Mr. Megget, W. S. paid
the debt to the extent of £65. 19s., and got an assignation to the
diligence. He then brought an action against the defender, con-
cluding for payment of the sum which he had so paid. In defence
it was alleged, that Couper was possessed of funds belonging to
the defender, which he was bound to have applied in extinction
of the debt ; that, prior to the assignation, he had become insol-
vent, of which Mr. Megget was aware ; that the funds with which
he had done so, had been obtained by him from Couper* s friends ;
and, at all events, that he was not an onerous assignee. There
being no evidence of these allegations, the defender referred to
Mr. Meggers oath, ' whether the sums contained in the assigna-
' tion narrated in the summons, and produced in process, were
' truly advanced and paid by the pursuer on his own account,
' and not on account of any other party, and whether he. is an
* onerous assignee or not.9 In answer to this, Mr. Megget de-
poned in substance that he had advanced the money from his
own funds, at the request of a Mr. Richardson, the father-in-
law of Couper, to the debit of whose account he had placed the
amount, and.against whom he had a right of relief, but that he
bad no written obligation to that effect ; that he was aware that
Couper was insolvent, and had executed a trust-deed prior to the
time when he so paid the money; and that he was an onerous as-
signee.
It was then contended by the defender, That as it was proved
that Mr. Megget had made the advance at a time when he was
aware that Couper was insolvent, and that as he had done so at
the request of his father-in-law, he was not entitled to the cha-
racter of an onerous bona fide assignee, and therefore that the de-
fender was entitled to plead the case as if the question were with *
Couper.
0*4 CASES DECIDED IN THE
To this it was answered, That the reference did not embrace
any allegation as 4a whether Mr. Megget was a bona fide assignee
or not, but merely whether he was an onerous assignee ; tbju he
had deponed that he had paid the full sum from his own funds,
and that the circumstance of conceiving that he had a right of
relief against Couper's father-in-law could not affect the. ques-
tion.
The Lord Ordinary found the oath negative, and decerned in
terms of the libel, and the Court adhered*
»
Lord President.— The oath proves that the pursuer paid the debt
out of his own money, but at the same time be says that be did so
on account of Richardson, the father-in-law of Coupen Then the
question arises, did he do so to screen Coupar from the claims of
Brown ? That is the true question at issue, and without being an*
swered, the case is not exhausted. But the defeoder has not made
any reference to that effect, and accordingly no question of that na-
ture has been put.
Lord Craigie. — My difficulty arises from the terms of the reference.
If the solq question related to the operosity> I could have no doubt ;
but I apprehend that it is necessary that it should appear that the
pursuer was a bona fide assignee. On this point the oath is by no
means satisfactory ; and I think we may still examine him aa to bis
knowledge of the counter claims by the defender against Couper.
As the oath stands, however, the interlocutor is right.
Lord Gillies. — There is no allegation here of mala fides, and on
looking at tbe reference and at the oath, there is no attempt to prove1
any such allegation ; and therefore, as the cause has been put upon
the question of onerosity, we must adhere.
Lord Balgray concurred.
T. Meggst, W. S.— A. Storik, W. S-— Agents.
No. 209. Susanna Campbell, Pursuer. — Maidment
Ann Campbell and Others, Defenders. — Cuninghame.
Husband and fFife~MimenL—}i&d. that a woman who haa enjoyed the asatv* of
a wife, during the life^ of a person who she alleged was her husband, is entitled
alter his death to an aliment hoc statu from his representatives.
Feb. 14. 1827. ^flE punuer brought an action of aliment against the repre-
laTDmTioir. 8entatives °' tlle late William Campbell, weaver and portioner in
S. ' Glasgow, alleging that she was his widow. This allegation hav-
ing been denied, the Court < allowed the pursuer a proof of her
< allegation that she possessed the status and character of the de-
' ceased's lawful wife at the time of his death." A proof was ao
COURT OF SESSION. fttf
cordingly taken, from which it appeared that the pursuer had re-
sided along with Campbell for a considerable time; that he re-
peatedly acknowledged her pa his wife, and addressed her as such ;
that she had been formerly married to a sailor, of whose death
there was no evidence ; that Campbell had been impressed with
the belief that she had been pregnant, and had brought forth
a still-born child, whereas it appeared that she had assumed the
appearance of pregnancy with the view to induce him to acknow-
ledge her as his wife ; and that the ceremony of an inlying, and of
the burial of the child, had taken place.
The Court * found the pursuer, in hoc statu, entitled to an ali-
' ment ;' and thereafter, on advising a condescendence as to the
amount of the funds and effects of the deceased, awarded an ali-
meat to her in the mean while of £90 per annum.
Loan BALOBAT«-«-*This is a question of aliment ; and all we have to
do at present, ia to ascertain whether the pursuer possessed the eta*
tua of the wife of the deceased at the time of his death. If we are
satisfied that she did so, she ia entitled to an aliment hoc statu ; but
our judgment will not affect the question aa to whether de facto she
was his wife. There are several circumstances which tend to show
that she was not so, and which, among ' persona of a higher rank of
Hfb, would be entitled to much weight. But it is clearly proved that
the deceased gave her at least the status of his wife in the society to
which she belonged, and that she was received aa audi, and there-
fere she is entitled to an aliment.
Lord Crjcigie. — I am entirely of the same opinion. The existence
of a former husband would be a moot relevant circumstance in a
question of marriage ; but this is one of status.
Lord President*— I rather think there was a felse pregnancy ; but
suppose that there bad been so, and that the pursuer, knowing that
the deceased wished to have an heir, had represented to him that
she waa pregnant, and that he had thereupon gone to a minister and
acknowledged her aa his wife, would that not he a good marriage ?
It ia unnecessary, however, to decide that point, because there ia
evidence that she held the status, which in this question ia suffi-
cient.
Loan Gillies concurred.
T. Wilson, W. &p— W. Allan,— Greig and Pbddie, W. S— Agents*
846 CASES DECIDED IN THE
m
No. 210. J. IfCLYMomv Pursuer.— £o£-G<»i. Hope—Wkigham.
P. Hughes, Defender. — D. ofF. Moncreiff— Marshall.
Trustee— Decree Cognitimi* Caus&.—A party having accepted the office of trustee,
along with another, for creditors, and having allowed his name to be used as such,
but denying that he had intromitted with the funds, and alleging that this had
been done exclusively by the other trustee, who was now bankrupt— Hcldy—
1. — That he was, notwithstanding, accountable to a creditor, as .if he had intro-
mitted ;— and,— 2. — That a decree cognitionis causa is sufficient evidence of a
debt in a question with such trustee.
Feb. 14. 1827. William M'Clymokt, merchant in Kirkcudbright, and son
1st Division, of the pursuer, having died insolvent, a meeting of his creditors
Lord Eidin. was held in the month of May 1822, when they ' unanimously
H* ' nominated and appointed Peter Hughes, merchant in Newton
* Stewart, and Robert Cochrane, accountant in Kirkcudbright,
c to be trustees for themselves and the whole creditors of the de-
' ceased William M'Clymont, with full power to them to take all
' necessary steps, and all legal measures, for collecting and up-
' lifting the outstanding debts as expeditiously as possible, as also
* to sell and dispose of the stock of goods, household furniture, and
* other effects which pertained to the deceased William M'CJy-
' mont, and that either by public roup or private bargain, as to
' them may seem most beneficial for the interest of the creditors,
c and as expeditiously as possible/ No assignation or disposition
was executed in their favour; but the keys of the repositories of
the deceased were delivered to them, and the active management
was thereupon taken by Robert Cochrane. The goods of the
deceased were afterwards exposed to sale by public roup, the ar-
ticles of which were signed by the defender ; but a sale in this
way having proved unsuccessful, the goods were afterwards sold
by private bargain for i?700. That sum, together with £ 300
more, was paid to Cochrane ; and notice was publicly given to the
creditors that the trustees were ready to pay to them ten shillings
per pound, and payments were made to them accordingly, several
of the receipts bearing that the money was received from the de-
fender.
Among other claimants was the pursuer, who was ranked on
the funds ; but as his claim was considered suspicious, and no
evidence of it was exhibited, no payment was made to him.
Early in 1824 he raised an action against the brothers and sisters
of the deceased for the amount of his* debt, in which he obtained
decree cognitionis causa, but in which the defenders were assoil-
zied quoad ultra, in respect of a judicial renunciation.
In the mean while Cochrane, who had intromitted with the
COURT OP SESSION, 3«
funds, became bankrupt ; and the pursuer, founding on the ap-
pointment of the defender Hughes as "trustee, and on the decree
cognitionis caus&, brought an action against him for payment of
the dividend of ten shillings per pound.
In defence it was stated, That although the defender had been
appointed one of the trustees, and his name had been occasionally
made use of as such by Cochrane, yet he had not intromited
with the funds ; that this had been done exclusively by Cochrane,
for whom he was not responsible ; and that there was no evidence
of the debt claimed by the pursuer ; and he therefore pleaded,
1. That as there had never been any conveyance to him of the
funds of the deceased, and he had never intromited, he could not
be made liable for the debt ; and,
2. That, supposing he were responsible for it, the decree cog-
nitionis causa tantum was not equivalent to a decree of constitu-
tion, and the pursuer was therefore bound to exhibit the docu-
ments on which that decree was founded, and on which he alleged
his claim rested.
To this it was answered,
1. Thai as the defender had accepted of the office of trustee,
and had acted a$ such, and as the whole effects of the deceased
had been disposed of under his sanction, and funds had come into
the hands of the trustees sufficient to pay the dividend claimed,
he was bound to make it forthcoming; and,
2. That in a question with the defender, holding funds of the
deceased, the decree cognitionis causa was per se sufficient evi-
dence of the debt ; and therefore he was not obliged, so long as
it was unreduced, to exhibit the grounds and warrants of it.
The Lord Ordinary decerned in terms of the libel, and the
Court, without hearing the pursuer's counsel, adhered.
Loan Balgray*— I never saw a clearer case. Perhaps the defender
did not actually intromit, but he admits that be accepted of the office
of trustee, and allowed his name to be used as Buch, and it is proved
• that he undertook to pay the dividend to the creditors. The only
question therefore is, Whether the pursuer has produced a title
as a creditor ? He founds on a decree cognitionis causa, and, be-
fore he obtained it, he must have produced his grounds of debt. In
a competition with creditors, such a decree maybe liable to be open-
ed up ; but here the question is with a trustee, who either has, or
must be held to have, funds in his hands to pay the debt. The decree,
therefore, is a sufficient warrant to him to make payment.
Ix>rd Craigik-— I have no objection to adhere, provided the question
as to the amount of the debt be reserved ; because I apprehend that,
notwithstanding the decree cognitionis causa, the defender, as trustee
348 CASE9 DECIDED IN THE
for creditor*, la entitled to show either that no tool cMt k dnt> or
not to the eltent alleged.
Lord Gillibb.— >W« most hold this party as iatromitting wkh the
whole effects, and we have evidence that the trustees bound them-
selves to pay a dividend of ten shillings per pound to the creditors.
Now, the pursuer comes forward and produces to him a decree cog-.
nitionis causa, which instructs that he is a creditor ; he has there-
fore a sufficient title to demand payment as a creditor. It is said,
however, that the debt is not due ; but in the closed record there is
not a word to that effect. All that is said is, that the proper evi-
dence of it has not been produced ; but there is no allegation made
that de facto the debt is not due. In this case the decree is suffi-
cient evidence of the debt
Lord President. — Until the decree is suspended or set aside, we
must give full (kith to it ; and on the other point, as to the liabi-
lity of the defender, I concur with the opinions which have been
delivered.
Pursuer's Authority.— I. Ersk. 7. 20.
Defender's Authorities.— Dick, March 12. 1685, (14064) ; Hamilton, Dee. $0. 1 709,
(14064) ; Goldie, Nov. 28. 1755, {140660
D. and A. Thomson, W. S. — Macallan and Grant, W. S. — Agents,
No. 211. J. B. Praser, Suspender and Pursuer.-*-!). qfF. Moncreiff—
Forsyth.
Geo. Fbasee, Charger and Defender. — James&rt — Ivofy.
N Settled Account -*Pro^rl^7kp.— -Held^^l.— That it is not competent* after a
regular settlement of aoeounta, and a species of transaction, to open them up to
the effect of reviewing the principles On which the settlement has been made ,*
— and, — 2.— That interest having been paid for; a series of ^ears, during the
period when/ the property**** statute was hi forte, without dtdacting that t*4
it is not competent to withhold payment of a balance to that extent,— the debt on
which the interest arose being origkftally a West Jmdia debt, and being payable
in London, and it appearing that no such relief would be allowed in England,
% or at least that the party must go to the Courts there to seek such relief.
Feb. 14. 1827* James Fraser of Gorthleck was proprietor of a plantation
1st Division. *** ^om*Bica> *nd his son Alexander of one in Berbice. The
Lord Eldin. charger, George Fraser, was the consignee and agent in London
H. of these parties, and in the course of their transactions he became
their creditor to a considerable amount, and for payment of the
portion of the debt due by Alexander his father James bound
himself as cautioner. On the death of Jaaftes Fraser, he was suc-
ceeded by his eldest son Thomas, who* thereby became liable both
for the debt due by hk father, and also by his brother Alexander.
In February 1813 it was ascertained that the pvoper debt of
COURT OP SESSION. 34ff
James Fraser amounted to J09M9: 11 : S, while that due by
Alexander (for which James and his son Thomas, as represent-
ing him, was liable) amounted to j£0682: 4: 5, making in all
£9792 : 15 : 8» At this time Thomas Fraser was residing in the
East Indies, and had authorized the suspender, his brother, Mr.
James Bristow Fraser, writer in Edinburgh, to act as his com-
missioner. Accordingly a settlement was, on the 29th of July
1812, made by that gentleman of the accounts, by a letter which
he addressed to the charger in these terms :— * London, 29th July
1812. — Mr. George Fraser. — Sir, Having, as commissioner for
my brother, Thomas Fraser, examined your accounts with the
estate of our late father, James Fraser of Gotthleck, Esq. and
likewise your accounts with my brother Alexander Fraser,
(under our said father's guarantee,) and compared the same
with the vouchers, I find the same correctly stated, and that the
balance due to you on the former, on the Sd of February last
past, was £8040 11 8
And the balance due on the latter, on the same
day, was - - - 6682 4 S
c Making together d£0722 15' 8
< Say nine thousand seven hundred and twenty-two pounds fifteen
* shillings and eightpence ; which sum of i?9722 : 15 : 8, together
* with the interest arising due thereon, I hereby engage, as my
' brother's commissioner, to pay you in London, by instalments,
' in terms of our former agreement.1 It was then specified that
the total sum was to be payable in four instalments, at Martinmas
1812, 1818, 1814, and 1815. At the same time the suspender, as
commissioner for his brother, granted two separate corroborative
bonds over the estate of Gorthleck in Inverness-shire, now be-
longing to Thomas Fraser, the one for the sum of £8040 : 11 : 9,
and the other for £6682 : 4 : 5, payable at the above periods,
with the interest from February 1812 till the respective terms of
payment. These sums, it was expressly stipulated, should be paid
* in the city of London, free of all charges and deductions ;' and
again it was declared, * that the whole of the said debt shall be so
< payable in London, where the same was originally contracted.9
None of the instalments were, however, paid at the stipulated
periods, and in the mean while the debt due by the Dominica
estate, belonging to Thomas Fraser, had by new transactions been
increased to j£5643 : 1 : 2. For this sum the suspender, as commis-
sioner of his brother Thomas, on the 3d of April 1816, granted
a bond to the charger, on the narrative that it was the * balance
* of accounts relating to certain plantations and estates in the said
850 CASES DECIDED IN THE
' island of Dominica, this day stated and settled between the said
' George Fraser and the said Thomas Fraser by the said James
c Bristow Fraser, his attorney ;' and be thereby < promised the
' said George Fraser that he shall, on or before the 81st Decem-
* ber next ensuing, be paid, by a good acceptance in London, the
' sum of. £1000 in part satisfaction of the whole of the said debt,
* and that he shall, on or before the 1st February next ensuing,
6 be paid the further sum of £5000, in further satisfaction of the
' whole of this said debt, and that all the residue of the whole of
* the said debt, with interests and costs, shall be paid on or before
' the 1st of February 1818/ This not being done, the charger
adopted legal proceedings against Gorthleck ; but he discharged
them on the 13th March 1818, and agreed to receive payment of
the balance due to him by instalments. Between that time and
the end of 1824, the debt due out of the Dominica estate was
extinguished, and that due by Alexander Fraser was reduced to
about Jp£000. In paying the interest no allowance had been
made for property-tax, nor did it appear towhave been taken into
consideration by either party.
In the mean while Thomas Fraser had died, and the sus-
pender having succeeded him, presented a bill of suspension as
of a threatened charge, on the ground, first, That he was en-
titled to deduction of the property-tax from the interest payable
under the arrangement of 1812 ; and, second, That he was en-
titled to go into a count and reckoning with the charger, to
the effect of showing that the balance was less than that which
the charger alleged to be due. Lord Medwyn passed ' the bill in
* so far & regards the property-tax, stated in the calculation of the
c suspender to amount to £6&. 7s. on the' one debt, and «£139. 4s.
' 6d. on the other, and refused it quoad ultra;' and his Lordship
at- the same time issued the following note : — « The settlements of
* balances have been too numerous and too solemn to admit of
( payment being stopped by such a proceeding as the present, on
' the allegation that it is necessary to examine all the vouchers of
* the account Nothing can be more formal than the settlement
« which took place on the 12th March 1818, when the charger,
* on his part, agreed to receive payment of the remaining balance
* by certain instalments, and discharged the legal proceedings
* commenced against the estate of Gorthleck. No special objec-
* tion is yet made to any of the articles of the account so settled*
' except as to the accumulation of the interest, and that property-
« tax has not been deducted. The first is clearly ill founded. As
' to the objection relative to the property-tax, perhaps it is
' closed by the repeated settlements, founded, it is said, on
COURT QF SESSION. 851
c qmtUe usage; but the words of the property-tax act (not quoted,
* however, by either party) are very strong.'
The suspender then brought an action of count and reckoning,
and contended,
1. That the settlements which had taken place were not of such
a nature as to exclude him from showing that he had either just
claims of deduction from the charger, or that those which were
made by him were unfounded ; that the accounts had been made
up on unjust principles, because the charger, instead of allowing
twelve months credit, to which the debtors were entitled, had al-
lowed only six ; and that he had accumulatedinterest upon interest.
£. That at all events, as it was admitted that no deduction had
been given for property-tax from the interest payable between
1812 and 1816, and as the debt was secured upon a Scotch estate,
it must be regarded as a Scotch debt; and1 as it had been settled
by repeated decisions of this Court that a party was entitled to
be allowed such deduction after a final settlement, and even to
get repetition, the accounts must be rectified to that extent. -
To this it was answered,
1. That after the solemn and deliberate settlements which had
been made, the first of which was of the nature of a transaction,
it was not competent to open them up, and to go into a general
count and reckoning ; and,
2. That as the debt was due by parties residing in the West
Indies, who were not liable in property-tax, — as it was merely
a balance on an account-current between merchants who did
not pay property-tax on the interest of such accounts, but on an
average of annual profits,— and at all events, as it was payable
in London,— and as it had been settled by repeated decisions of
the English Courts (contrary to those of this Court,) that where
interest had been paid without deducting property-tax, and the
creditor had been allowed to consume it bonfi fide, it was not
competent to demand repetition, and as the question here must
be decided according to the English rule, the suspender could not
insist for repayment. -
The Lord Ordinary at first ' found the suspender entitled to
* deduction from the sums charged for, of the property-tax upon
* the whole interest that became due to the charger from the 3d
* day of February 1812, the date of balancing the charger's ac-
< counts, to the 5th of April 1816, when the tax ceased.' But
thereafter, on advising a representation, his Lordship altered, re-
pelled the reasons of suspension, and in the count and reckoning
sustained the defenoes, and assoilzied the defender; and the
Court adhered. .
VOL. V. Z
362 CASES DECIDED IN THE
Lord Balgray. — It is impossible to get over the settlement m 1802,
and that the more especially, aa it has been made the foundation of
all the subsequent arrangements. Where there are errors in the cal-
culation, they may be corrected at any time ; but after there hat
been a solemn settlement of the whole matters in dispute between
the parties* it is impossible that we can open it up, and rectify the
principles on which the arrangement has taken place* The sus-
pender says that the accounts should hare been made up on the
principle of receiving twelve months credit, whereas only six were
allowed ; but this is now too late; and besides, the charger .agreed
to postpone payment of his debt for several years. I have some dif-
ficulty as to the property-tax. It is of the nature of a right of re-
tention, and so long as the debt is not entirely paid, it may be ex-
ercised ; but if the debt be paid out and out, then perhaps the cre-
ditor may, in a question of repetition, have a plea of bond fide con-
sumption. In this case there is, no doubt, a balance still due ; but
we must attend to the nature of the debt. It was a West Indian
debt* due by parties residing in the West Indies, to which die Pro-
perty-Tax Act did not reach, and was payable in London. The
heritable bonds were merely corroborative securities of that which
was truly a mercantile debt; and as the interest was payable in Lon-
don, the question comes to be, whether the payments made there
were lawful payments or not ? But the suspender ought to have gone
to the. English Courts to have had that point decided ; and it appears
from their decisions that he would not have been entitled to any re-
lief. I do not see, therefore, how we can find that these payments
were unlawful, and so order repetition, or allow retention.
Lord Gillies. — I am of the same opinion. The only difficulty of
the case relates to the property-tax. If the suspender had paid that
tax on a proper Scotch debt, he would have been entitled .to reten-
tion ; but this was a West Indian debt, and it is therefore extremely
doubtful whether property-tax was exigible. But, besides, it was to
be payable in London ; and if the suspender says that he has made
an over-payment there, he must go to the English Courts to have
that question decided.
, Lord Craigie*— I am entirely of the same opinion. There was here
not only an accounting, and a balance struck, but there wae a trans-
action, and therefore it is impossible to open up the accounts.
With regard to the heritable bonds, they were merely corroborative
securities of a debt due in the West Indies, and for which the grantor
was a cautioner. It cannot therefore be properly characterized aa
a Scotch debt
The Lord President concurred.
8uipender'sAut*\oritiet.--Biitchard, Dec. 16. 1814, (F. C.) ; Wilson, May 24. 1812,
(ante, Vol. I. No. 487) ; Weavers of Ayr, June 13. 1823, (ante, Vol. II. No. 376.)
Char get* t Anthoritiet.—\. Barn, and Aid. 123( 1. Brod. and Bing, 37.
J. B. Fraser,— T. Mackenzie, W. S,— -Agents.
COURT OP SESSION. 853
» » ■
J. and J. Jack, Advocators.— Cuninghame. No. 212.
J. Bakton, Respondent.— A«^jf/wrd.
Heritable G*d*for.—An heritable creditor having entered into complete and sole
possession of the subjects over which his security extended, and having charged
a bctor's fee, held liable In a factor's diligence, and accountable as such, al-
though the heritable bond declared thai be should not be bound to do diligence
against tenants, and should only bo accountable for actual intromissions.
Baeton granted to Jacks a disposition in security of £250 Feb. 14. 1827.
borrowed money over certain houses, inhabited chiefly by work- jD d^ow.
ing people, with a power to enter into possession by uplifting the Ld. Cringietie.
rents, he; but declaring that they should not be bound to do F*
diligence, and that they should be accountable only for their ac-
tual intromissions* In 1810 Jades obtained a decree of maills
and duties, and in 1819 they entered into complete possession,
taking the sole charge of uplifting raits* omputting and input-
ting tenants, fee., for which, in accounts subsequently rendered,
they charged a factor's fee of five per cent, on the rents recovered.
In an action of count and reckoning brought by Barton in 1823
before the Sheriff of Lanarkshire, Jacks admitted that they had
kept no regular account of the rents received, but had made up
that given in by them in a great measure from memory.
To the accounts so lodged it was, inter alia, objected,
1. That Jacks ought to have charged themselves with all arrears
of rent, seeing that they had neither done diligence, nor intimated
to Barton tbd failure of the tenants to pay, and had charged a
factor's fee ; and,
2. That they were not entitled to take credit for a sum of ex-
penses incurred in a litigation with Niven, one of the tenants, who
had succeeded in defending himself against an action for rent on
the ground of a counter claim of damages, in consequence of his
house not having been kept in proper repair. The Sheriff, ( in
' respect the defenders entered into possession of the subjects be-
' longing to the pursuer, and conveyed to them by the bond,
' took the management thereof, and were the sole intromitters
' with the rents, and that they do not allege, and do not prove,
* that they gave regular notice to the pursuers of the tenants
' having failed in payment of their rents ; and in respect of the
' defenders having made a charge for factor's fee, found that
* they are liable in the diligence prestable by regular factors, and
c are accountable as such to the pursuers/ He therefore remitted
to an accountant to make up a report on these principles, and
subsequently decerned in terms of the report. Jacks advocated ;
804 CASES DECIDED IN THE
but the Lord Ordinary remitted simpliciter, and the Court un-
animously adhered.
The Lord Ordinary observed in a note :—
The Lord Ordinary has advised this representation, and assents to
all the reasons of the Sheriff's interlocutor. It is true that by toe
heritable bond it is declared that the representer should not be
bound to do diligence, because doing it might occasion both trouble
and idle expense ; but, if he did not do diligence, common justice re-
quired him to give notice to the respondent that the rents were un-
paid, and so enable him, particularly for rents of small houses, to use
his right of hypothec, and recover them ; whereas, when he got no
notice, he was entitled to believe and rely that the rents were paid.
2. Since the representer chose to charge factor's fee at the rate of
5 per cent., he undertook the duties incumbent on a factor, and
thereby departed from the stipulation in his heritable bond, that he
should not be bound to do diligence. Lastly, Since the representer
chose to take upon him to output and input tenants, he undertook the
duty incumbent on every landlord of a house to keep it habitable
and tenantable ; and if he chose to fail in this, and involve himself in
an unsuccessful lawsuit with his tenant, it is impossible to indemnify
him of expenses incurred by his own carelessness. The case of
Mackechnie v. Clark is toto ccelo different from this. In that it
was laid down, or to be extracted as a rule, that when a creditor
gets assigned to him a debt in security of one owing to him, he is
entitled to the expenses of making effectual or recovering the debt
so assigned. Surely this does not apply to entitle him to get the
expenses ofan idle or ill-founded lawsuit which he raises and loses,
instead of recovering the subject ; and that was what happened to the
representer in his action against Niven.
The Judges concurred.
Advocators' Authority,— Mackechnie, July 10. 1752, (14117.)
W. Waddell, W. S-^J. G. Hopkibx, W. S,— Agents.
COURT OP SESSION. 855
f
W. Goddabd, Pursuer.—/). cfF. M oner eiff— Ivory. . No. 213.
Leith Dock Commissioners, Defenders-— Sol.-Gen. Hope—
. VAmy—Tawsc.
TUie to Pmnte—K member of a Board of Commissioners elected under authority
of an act of Parliament is entitled to pursue a reduction of an act done by the
Board, on the ground of its having been carried by the votes of two Commis-
sioners who were disqualified, without his being obliged to conclude for reduc-
tion of the appointment or commission in -virtue of which these persons acted.
By the late Act for the Improvement of the Dock and Harbour Feb. 14. 1827.
of Leith, it is appointed that certain bodies shall annually elect per- 8d DmgI0lf
sons to act as Commissioners along with certain ex officio Commis- Lord Newton.
doners nominated in the act ; and in particular the Magistrates B.
and Council of Edinburgh are empowered to nominate as Com-
missioners (besides five members of their own body) two persons
who shall be merchants in Edinburgh, and shall not be members
of Council. It is also provided, that in the event of a supervening
disqualification after a Commissioner has been elected, the Board of
Commissioners shall intimate the same to the body by whom such
person may have been elected, and, on their failure to elect a new
Commissioner within one month, the right of election may be
exercised by the Board; and persons who are disqualified, and yet
act as Commissioners, are subjected to a penalty of £%0 for every
such acting. Under authority of this act, the Magistrates and
Council of Edinburgh elected, as the two merchants of Edinburgh,
Mr. Cockburn and Mr. Brown, who accordingly took their seats
at the Board, and acted as Commissioners. At a meeting, how-
ever, held shortly thereafter for the purpose of appointing a super-
intendent of the harbour, the pursuer Goddard, who then for the
first time took his seat at the Board, objected to Mr. Cockburn
being allowed to vote, on the ground that he was disqualified
from acting as a Commissioner, not being a merchant in Edin-
burgh. The meeting overruled the objection, and Mr. Cockburn
gave his vote accordingly for Mr. Dall, for whom Mr. Brown
also voted, and who was declared to be elected by the casting vote
of the chairman. Of this election Goddard brought a reduction,
on the ground, inter ,alia, that Cockburn and Brown were dis-
qualified, and that their votes therefore ought not to have been re-
ceived ; but he did not conclude for reduction of the election of
these persons as Commissioners. As a preliminary defence against
this action it was pleaded, that ' the pursuer has no title to call in
' question the qualification of the defenders Messrs. Brown and
' Cockburn to vote in the election of a manager and superintend-
* ent of the harbour and docks on the 21st July last, especially
S66 CASES DECIDED IN THE
' in an action which does not conclude for reduction of the com-
< mission or appointment uader which they Had been received and
« sat as members of the Board of Commissioners, and in which
€ they are nominated as qualified persons, in terms of the act of
( Parliament.'
In support of this defence it was pleaded, That as the statute
gave power to persons holding an appointment from the bodies
privileged to elect Commissioners, to sit and vote as such, their
right to do so could not be questioned on the ground of their
being disqualified at the date of their appointment, (especially
by an individual Commissioner,) without a reduction of that title
which by force of the statute gave them a power to act ; and as
to any supervening disqualification, that it was clearly intended
by the statute that the general Board alone should be entitled to
judge of that, as they were appointed to intimate the disqualify
cation to the electing bodies.
The pursuer answered, That the question, whether he was en*
titled to reduce the election of the superintendent, without also
reducing the commissions of the persons whose votes he objected
to, was not a question of title, but one on the merits ; that he
was willing, however, to argue it as if it were an objection to title;
aqd he contended that as the act of Parliament only gave a power
to elect persons qualified in a certain way, if the electing bodies
elected an unqualified person, his appointment was not protected
by the statute, or if he became subsequently disqualified, his
acting was not sanctioned by the statute ; and that any single
Commissioner, therefore, had at common law a sufficient title and
interest in either case to object to his acting, and to pursue reduc-
tion of acts done in consequence of his invalid vote, without the
necessity of setting aside his appointment, which he could often
have no interest to do, as the elections were annual, and as the
party whose appointment was sought to be reduced might con-
sequently be out of office before any procedure pould be had in
N the action. The Lord Ordinary repelled the defence, and. the
Court unanimously adhered.
Lord Glenlee*— The objection here is certainly not to the title, but
to the form of the libel as laid ; but it has been argued as an objec-
tion to the title, and taking it in that view, the interlocutor of the
Lord Ordinary is right. May it not be ascertained whether an elec-
tion is effectual to give a person a certain right) without setting the
election aside? Suppose a married woman is nominated as a tear to
children, is it necessary for the co-tutot* to set wide the imuwiun,
in order to prevent her from acting? Clearly not; and I do fot see
any greater necessity for a reduction here. Suppose Goddard had
COURT OF SESSION. 357
merely taught • simple artist), eeoclading dm* Cockburn w$a d»<.
qsjsjlifiert, I could see no objection to such to action, and I am there-
lore for adhering.
Lord Pjtmijxy— This is sot an objection tq the title, which is un-
questionable, but to the form of action; and, even if good, it would
go no further than that the process should be sisted till a reduction
were brought. The act of Parliament points out distinctly the qualifi-
cation under which alone Commissioners are entitled to act ; and it
is a sufficient ground of reduction of any act done by them, that it
was carried by the suffrage of a person not qualified to rote. There
is no necessity to reduce the party's election, and often no interest;
as for instance, if the act here challenged had happened the day be-
fore Cockburn was to go out of office. I have no doubt that the
interlocutor is right.
Lord Alloway. — I am entirely of the same opinion. It is a common
law right in every case for any party having interest to crave redress
against a wrong which he has suffered. If Goddard s vote has been
counteracted by the vote of a person not qualified, unless expressly
excluded by the statute, he is entitled to pursue reduction of the act
done. In the case of Calder regarding the election of a clergyman, the
privilege of voting depended on feudal rights ; but could it ever have
been pretended that a vote could not be challenged, without reduc-
ing the titles of the persons whose votes were objected to ? The
clause in this act, too, imposing penalties on disqualified persons who
shall act, makes it quite dear ; for it is impossible that a vote should
be counted, which subjected the person to a penalty for giving it.
Lord Justice-Clbrjc-t-I have little to add to the opinions delivered.
Looking at the whole act of Parliament, I cannot alter the interlo-
cutor. If any wrong be done by a majority of Commissioners, any
member is entitled to bring the matter before this Court for redress,
unless expressly excluded by statute.
W. Bell, W. S*— MacRitchies, Batlrt, and Henderson, W. S— -
Agents.
D. Smith, Petitioner.—!). tfF. M<mcreifi—Matheson. No. 214.
SefuettrQ&mr—Bankrvpt—te. Geo. III. c. 137.— A discharge on a composition
granted to the sole constituent members of a company under sequestration, both
as partner* and individuals in respect of no objection, and the sequestration at
the **■"" time declared to remain effectual as to the company and its effects.
Duncan Smith and one Jones, the sole partners of the firm Feb. 15. 182%.
of D. Smith and Company, whose estates had been sequestrated, ]sr D|VIS10N.
presented petitions stating that their creditors had agreed to
accept of * composauoo, and grant them a discharge so far as
regarded the claims against them as partners and as indivi-
358 CASES DECIDED IN THE
duals, but stipulating that the sequestration should subnet in
relation to the estates of the company ; and they therefore prayed
the Court to approve of the composition, and grant a discharge
accordingly.. When the petitions were moved, the Court ex-
pressed great doubts as to the competency of discharging the sole
constituent members of the company, and at the same time to
declare that the sequestration should subsist as against the com-
pany itself. After, however, delaying the case for consideration,
they pronounced this interlocutor on the petition for Duncan
Smith, and a similar one on that of Jones :— ' Declare the seque-
' stration at an end in so far as regards the said Duncan Smith
' as a partner of the said concern of D. Smith and Company, and
' as an individual, in respect that none of the creditors are ob-
( jecting ; but find the sequestration shall still subsist as to the
6 company, and the company's whole property, estate, and effects ;
* recall the sequestration to the above extent accordingly ,' &c ;
' find the said Duncan Smith, as a partner of the said company,
' and as an individual, discharged of all debts contracted prior to
' the date of sequestrating his estate, except as to payment of the
* said composition,' &c.
A. Burns, W. S. Agent*
No. 215* £• Turner, Suspender. — Donald.
Gibb and M'Donald, Chargers.— J^rry.
Feb. 15. 1827. This was a question as to the property of certain goods claimed
In Division. ^7 Turner, which the Sheriff of Edinburgh found belonged to
Bill-Chamber. Gibb and M'Donald ; and the Lord Ordinary and the Court re-
tard Newton, fused a bill of suspension.
R. Cairns, Agent.
No. 216. Lord Ltkedoch and Others, Pursuers.— Ftt&rton—^om^ww*.
J. Ouchterlony, Esq. Defender. — Murray— Rutherfiird.
7Vi»#ee.— Several trustees having been nominated by a deed of settlement, and
. three declared to be a quorum, and all of them having accepted, and the number
having been reduced by death to three— Held that one of them, who, although he
had accepted, yet declined to act, was bound to concur with the other two
in all reasonable and proper acts of administration, and in particular in uplifting
part of the trust-funds, the loan of which he alleged he had disapproved of.
Feb. 15. 1837. The late John Kinloch, Esq. of Eilry, by a disposition and
1st Drv^Tioir. deed of segment dated the 7th of July 1802, conveyed his whole
Lord Eidin. estates to Lord Lynedoch, (then Colonel Graham) George Demp-
H. ster, Esq.of Dunnichen, William M'Donald of St. Martin's, writer
COURT OF SESSION, 869
to the signet, his son William M'Donald, Esq. and the defender
Mr. Ouchterlony, and to the survivors of them, and the acceptors,
as trustees for special purposes, and particularly for investing
«£1 2,000 in lands, to he entailed in favour of the same series of
heirs, and under the same conditions, as contained in his entail of
the estate of Kilry. He also provided, that any three of the
trustees accepting should form a quorum, and that they should
not be answerable for omission, but each only for his own actual
intromissions. By a subsequent deed he appointed his son and
heir of entail, Colonel Kinloch, to be an additional trustee.
All the trustees (including Mr. Ouchterlony) accepted ; and
after the death of Mr. Kinloch, having invested about .£8500
of the above sum of i?12,000 in lands in the manner provided by
the trust-deed, they lent i?1000 of the balance to Colonel
Kinloch on his own and another gentleman's personal bond ; and
in 1816 they lent to him -£2486, being the remaining part of the
£12,000. This latter sum they gave to him upon the security
of his own bond, and an assignation by him of a policy of insurance
for JE2BQ0, which he had effected on his life with the Royal Ex-
change Assurance Company. Mr. Ouchterlony did not concur in,
nor, as he alleged, was he made aware of these loans ; and he stated
that when he was informed of them, he disapproved of them. The
arrangement, however, was sanctioned by a quorum of the trus-
tees, consisting of Lord Lynedoch, Mr. Dempster, an<J Mr.
McDonald ; and the deeds, particularly the assignation, were taken
in favour of the whole trustees nominatim, including Mr. Ouchter-
lony. '
On the 17th of May 1824 Colonel Kinloch died, whereby the
trustees acquired right to uplift from the Assurance Company the
sum of £9500. By this time both Mr. M'Donald senior of St.
Martin's, and Mr. Dempster of Dunnichen, had died, so that,
-without Mr. Ouchterlony, there was not a quorum of trustees.
In order to uplift the money, it was necessary to have his concur*
rence in granting a discharge ; but he declined to give it, stating
that he had all along disapproved of the loans, and that he did
not wish to connect himself with the transaction in any manner,
lest, in the event of any loss having been sustained by it, he might
thereby expose himself to liability under the clause relative to
intromissions. The Assurance Company having refused to pay
the money, except with his concurrence, the other two trustees,
Jlrord Lynedoch and Mr. M'Donald, brought an action against
him, concluding that he should be ordained to perform his duty
as trustee in all respects, and in particular to concur with them
in granting a discharge to the Assurance Company, and in receiv-
ing payment of the money.
360 CASES DECIDED IN THE
In defence Mr. Oufcbteriony maintained, . •
1. That as his acceptance of the office of trustee took place un-
der the condition that he should not be liable for intromissions,
unless he actually intromited ; that if he were to concur in the
demand made upon him, he would' of necessity expose himself
to such a responsibility ; and as he had all along disapproved
of the transaction^ and considered it injurious to the estate, and
as at all events, whether loss and damage had been sustained or
not, he could not be required to place himself in a situation which
might give rise to a demand against him on that account, he could
not he compelled to do so; and,
58. That although the assignation waa taken in his favour, yet
this bad been done without his consent; and it was therefore in*
cumbent on the other trustees who had done so, to extricate them-
selves in the way which they thought best, without implicating
him.
To this it was answered,
1. That as he had accepted of the office of trustee, he was
bound to perform the duties of it, and was not entitled to with-*
draw or resign, more especially as there was no longer a quorum
without him; and,
2. That as the uplifting of the money and granting the dis-
charge was a proper and reasonable act of administration, and
would have the effect of restoring matters to the same situation as
if no loan had been made, he was not entitled to withhold his
concurrence from the accomplishment of that object.
The Lord Ordinary found ' that the defender John Ouchter-
( tony is not ' at liberty to withdraw himself, and renounce the
< management of the trust-estate, as one of the trustees appointed
' by the trust-deed in question, executed by the deceased John
' Kinloch ; but that he is bound to act as trustee along with the
( pursuers in granting a valid discbarge to the Corporation of the
* Royal Exchange Assurance in London for the sum of £9800
* sterling, mentioned in the summons, contained in the policy of
* insurance by said corporation, and in recovering payment of the
* same, and in general in the management, recovery, and appli-
' cation of said trust-estate, until the trust-affairs shall be finally
< wound up and brought to. a conclusion, in terms of the before-
< mentioned trust-deed ; and found and declared that he is bound,
' in the future management of the estate, to act along with the
' trustees, and to concur with them in all proper and necessary
* acts of administration, and decerned accordingly .'
The Court adhered.
COURT OF SESSION. , 861
Lord President, — The defendnr may here acted rightly in refining
to lend the money in the way in which it was done; but what he is
here required to do is to consent to take the money from the Assur-
ance Company, and so remedy that which lie alleges ought not to
have been done. I therefore think that he is bound to concur in do-
ing 80.
Lord Balgray-— By accepting of the office of trustee, the defender
necessarily agreed to submit to the opinion of the majority; and in-
deed, if be were permitted to resist that opinion, he would just be
making hiswslf a sine quo no*. If he had conceived the loan aa
iaspfoper transaction, he ought So hare oompktaed to this Court, but
he did not do so; and the question new is, not aa to the loan, but aa
t* the repayment of the money. This cannot be accomplished wfek-
out his eoncurrence, as there would otherwise not be a quorum ; and
aa it is a reasonable and proper act of admiiiistiatiaa, I think be is
bound to .coactfr.
Lobjd Oiu.nfli 1 1 am of the same opinion* The clause constitut-
ing a quorum declares that any three of those who have accepted
shall form it. If he had wished not to act, he ought not to have ac-
cepted ; but by accepting he is bound to act, and in doing so he is
not entitled to resist the will of the majority, and to say to them, sic
yoIo, sic jubeo.' If be resisted the lending out of the money, it seems
somewhat inconsistent to resist the taking of it back.
Lord Craigik concurred.
D. Watson, — A. Pearson, W. S— Agents.
S. Sharrat, Pursuer*.— Btrird— Coventry. No. 217.
J. Turhbull, Defender. — More — Pringle.
ftfr ■ JmplM 06A'^alw».— Curcttinfltaiices under welch a merchant to whom goods
had been sent as having been purchased by him, but which he alleged had been
bought by another party, and not having sent notice of the alleged mistake debito
tempore, was held liable to pay the price.
The pursuer Sharrat, a manufacturer in Staffordshire, brought Feb. 15. 1837*
an action against Turnbull, a merchant in Selkirk, alleging that ltT DiyiBIOW.
on the 9th of May 1888 he had, in consequence of a previous Lord Eldin.
order, sold and transmitted to him a quantity of scales and other D.
ornaments for yeomanry helmets, of the value of £99 : 4 : 6, for
payment of which he concluded. In defence it was stated. That
the pursuer having been in the defender's shop receiving orders
for other goods, a Mr. Clarkson (who was one of the officers of
the Selkirkshire yeomanry) ordered those in question ; but that
the pursuer, instead of sending them to that gentleman, had
transmitted them to the defender along with the other goods,
and that, immediately on receiving them, the defender had inti-
362 CASES DECIDED IN THE
mated their arrival to Mr. Clarkson, who* on the 15th of June,
wrote to the pursuer, informing him that they had been over-
charged—that a greater number had been sent than had been or-
dered—and that they lay with the defender at the disposal of the
pursuer, unless a great deduction were made. In answer to this
it was stated by the pursuer, That he had received the order from
the defender alone, and had immediately made an entry to that
effect in his order-book ; that he was entirely unacquainted with
Mr. Clarkson, who was not a trader ; that, along with the goods,
he had sent an invoice of them, addressed to the defender, who
never gave him any notice that any mistake had been committed ;
that the only intimation which he had received on the subject
was from Mr. Clarkson, at the distance of more than four weeks
after the goods had been sent ; that it was not then stated that
any error had been committed in sending them to the defender,
but merely that the price which the pursuer had charged against
the defender was too large ; and that accordingly the defender
himself, in a letter which he wrote to the pursuer after raising
the action, put his defence entirely upon that footing. He there-
fore contended, /
1. That the circumstances proved that the defender was the
purchaser ; and,
2. That at all events, as they had been sent to him, accom-
panied with a regular invoice, and no objection had been made to
them from the 9th of May to the 15th of June, when Clarksorife
letter was dispatched, he must be held liable for them.
On the other hand, it was maintained by. the defender that the
proper debtor was Mr. Clarkson ; that if any mistake had been
committed, it was by the pursuer, and that no implied liability
could be raised against the defender by delaying to rectify a
mistake originating with the pursuer himself.
The Lord Ordinary, after allowing a proof, decerned in terms
of the libel, and the Court adhered.
Lord President. — If there had been any mistake, it was the duty
of the defender, on receiving the goods, to have intimated this to
the pursuer, and to have informed him that he had delivered them
to the proper party, and that he was to look to him for his payment ;
hut this he did not do. I think, therefore, he is liable.
Lord Balgray. — At first I was disposed to think that the interlo-
cutor was wrong ; but I am now of a different opinion. There ap-
pears to have been a mistake on the part of the pursuer as to the
party who ordered the goods. This, I think, was done by Clarkson ;
and if the case had rested there, the defender must have been as-
• eoikied. But the goods were sent on the 9th of May to the de-
COURT OP SESSION. 368
fender, along with others which had been bought by him, and all
of which were included in one invoice, specially addressed and
charged to the defender. This he could not fail to see ; and, as, a
trader, he must also have known that they would be entered accord-
ingly in the pursuer's books. It was therefore his duty, on re-
ceiving the invoice, to have notified the error to the pursuer by the
first post, and to have informed him that he had handed them to
Clarkson. But the only notice which was sent to the pursuer is
dated the 15th of June, and was sent by Clarkson, who referred
him to the defender ; and again the defender, in his letter written
several months thereafter, did not pretend that they had been im-
properly addressed, but only that the price was too great.
Lord Craigie. — The real nature of the transaction appears to me to
have been this :— Clarkson happened to be in the defender's shop,
wanting the articles in question, at the time when the pursuer was
there ; and the defender not having them, the pursuer agreed to
send them through the defender, who in this matter was to be a
mere agent, while Clarkson was to be the purchaser. The pursuer
accordingly executed the order by sending them to the defender,
who immediately delivered them to Clarkson as the proper party.
It is said, however, that the defender ought immediately to have
notified to the pursuer that there had been a mistake. But this is
requiring a degree of accuracy and strictness from a country shop-
keeper, which could only have been insisted for from a merchant on
an extensive scale, and appears to me to be straining the doctrine of
implied liability too far.
Lord Gillies. — I am satisfied that the defender is the proper party.
The pursuer, an English merchant, goes into a country shop, and a
person comes into it inquiring for goods. The shopkeeper has them
not at the time, and, in the course of the conversation which takes
place, they are ordered from the pursuer. It is clear that he must
have regarded the defender as the purchaser. Clarkson was to him
an utter stranger; and he could not have invoiced and sent the goods
to one of whose address he was entirely ignorant. Accordingly he
sent the goods to the defender, and at the distance of more than a
month Clarkson writes, complaining of the price, but referring to
the defender. Throwing out of view, however, all the other cir-
cumstances, it seems to me sufficient to make the defender liable,
that a regular invoice was sent to him along with the goods— that
they were received, and no objection made by the defender.
Lord President.— In reference to what has been said by Lord
Craigie, it is impossible to distinguish between a large and a small
dealer ; for how could we do so, or where is the line of distinction
to be drawn ? The defender, however, appears to be a person in
considerable business for the district of country in which he resides,
and must be in the daily habit of receiving goods, and at all events
could not feil to see that the invoice was addressed to him, and
S64 CAS^S DECIDED IN THE
' therefore that he was charged with the contents. Indeed I know
that manufacturer* often send good* without any order, merely
stating that they are aneh as may be serviceable to the retail dealer ;
and the understanding distinctly is, that if they are not immediately
rejected, and notice giretuto that effect, the party to whom they are
sent is held to be the purchaser.
H. Wilson,— C. B. Scott, W. &~ Agents-
No. 218. J. Shith, Pursuer.— Murray— D. Dickson.
Sir H. Ikkks, Defender. — Brown.
Reparation— Muter and Serwmi-^Proeess^Ji^d that in an action of damages
against a master, for having verbally charged a servant before a Jostle* of Peace
with fraud, and examined a number of witnesses without any warrant* it was not
necessary to, libel malice, as if it had been a regular judicial proceeding.
Feb. 15. 1827. The pursuer,' who had been for several years farm-grieve of
lw Division. ^e defender, and had been employed by him during a period of
Lord Meadow, scarcity to dispose of meal among the tenants and cottars on the
bRk defender's estate, brought an action of damages against him, in
which he alleged that at first the defender had purchased and sold
the meal on his own account, but that having suffered considerable
loss, he latterly entered into1 an arrangement with the pursuer, by
which the defender was to advance the funds necessary for pur-
chasing the meal, which was to be charged against the pursuer,
who should be allowed all the profit, and suffer all the loss, which
might thence arise ;— that the defender pretending that the pur-
suer was acting merely as his servant, and that he had defrauded
him, made a verbal complaint of fraud against him to a Justice
of the Peace, before whom he brought a great number of wit-
nesses, who were examined upon oath, and their depositions taken
down in writing ; — that no petition was presented, and no war-
rant of any nature issued, and the pursuer was not allowed to be
present to vindicate his character ;— but that no further steps were
adopted, nor was any judgment pronounced in consequence of this
investigation-
He further alleged, that about the same time the defender's
law-agent wrote a letter to the factor on his estate as to the pur-
suer's conduct, in which, inter alia, he stated that the defender
f views himself defrauded in the meal transactions ;' and that
again, in a litigation which took place in the Sheriff Court of
Ross-shire between that factor and the defender, the latter, in
reference to the subject-matter at issue, stated that ' probably
' your Lordship had not s«een any thing more indecent than this
COURT OF SESSION. 365
' agency on behalf of Smith, undertaken by the very man whose
1 duty it was, as the petitioner's (defender's) factor, in the first
' place, to prevent the peculations of Smith, and, in the next
1 place, to aid the petitioner in obtaining redress against that per-
* son's malversations.''
The pursuer did not allege malice, but concluded that, on ac-
count of these proceedings, the defender was liable to him in
damages. The defender, on the other hand, raised an action of
count and reckoning against him in relation to the meal transac-
tions, which was conjoined with that at the instance of the pursuer.
In defence against the action of damages, the defender stated
that the pursuer had acted as his servant, and was accountable to
him ; that he had been credibly informed, and had ascertained,
that be was defrauding him, and he therefore maintained these
pleas:*—
1. That when a master suspects that his servant has defrauded
him, and gives information to a Magistrate or Justice of tho
Peace, who makes an investigation into the circumstances, such a
proceeding is no relevant ground for an action of damages at the
instance of the servant against the master, he having an interest
to make the investigation, having proceeded on information given
him by a third party, and it not being alleged that he was actu-
ated by malice.
&. That where a charge of fraud made by a master against a
servant is true, the former is not liable in damages for having
made it.
8. That the expressions made use of in the letter by the de-
fender's agent were not actionable ; and, at all events, he could
not be liable for expressions which he did not authorize ; and,
4. That as the statements made in the process before the Sheriff
of Ross-shire were pertinent to the issue, and rested on probable
grounds, they could form no relevant cause of action.
On the other hand, it was contended by the pursuer,
I. That the proceedings before the Justices of the Peace were
irregular and unwarrantable, and could not be characterized as a
proper judicial process, or entitled to the privileges of it, and he
was therefore entitled to any damage which he might thereby
have sustained; and,
52. That as the allegations of fraud were entirely destitute of
truth* he was entitled to reparation for these expressions, which
had been authorized and sanctioned by the defender.
1*he Lord Ordinary found, ' that it not being alleged that the
' defender Sir Hugh Innes was, in his application to the Justices
' of the Peace respecting the pursuer, actuated by malice, those
386 CASES DECIDED IN THE
c proceedings cannot, in consequence of the relation of master and
' servant which subsisted between the parties, be made the ground
' of an action of damages ; ' that the defender cannot be made re-
< sponsible for the unauthorized expressions alleged' to have been
' employed by his agent in a letter sent to a third party, and with
' the writing and sending of which it is not averred that he had
c ?.ny connexion whatsoever ; that the other expressions conde*
' scended on, and alleged to have been used in the written plead-
* ings of a judicial proceeding, being made on probable grounds,
c and pertinent to the issue of the matter then in dependence,
' cannot be sustained as affording relevant grounds for an action
' of damages ;' and therefore assoilzied the defender, with ex*
penses.
. The pursuer having reclaimed, the Court declined to hear his
counsel, and called upon the ooqnsel for the defender to support
the interlocutor, and thereafter recalled it, and remitted to the
Lord Ordinary * to proceed in the action at the instance of Sir
' Hugh Innes against James Smith, and to sist process in the ac-
' tion at James Smith's instance against Sir Hugh Innes, till the
' previous action is discussed and brought to an issue ;' and found
the pursuer entitled to the expenses hitherto incurred.
The Judges were unanimously of opinion, that the rule on which the
defender rested in relation to proceedings adopted by a master against
a servant, did not apply to tins case, because be was not entitled to
act in the manner in which he had done, by going to a Justice
of the Peace, making mere verbal charges,— collecting together wit-
nesses without any warrant, — taking their depositions, and refusing
to allow the party accused to be present. They were therefore dis-
posed at first to remit the case forthwith to the Jury Court ; but as
it appeared that the action of count and reckoning had been finally
cepjoined with that of damages, and that it would be expedient to
ascertain whether there was any balance due by the pursuer to the
defender, which might have a considerable influence on the quantum
of damages, they remitted to the Lord Ordinary to discuss that ques-
tion in the first place. Their Lordships, however, did not deliver
any opinion on the other two points contained in the interlocutor
of the Lord Ordinary.
Pefender'i AuihoritieM.—(\.)--T)Tmfa&, Dec. 28. 1727, (13929); Forteith, Nov.
18. 1819, (F. C.) ; Davidson, May 12. 1821, (ante, Vol. I. No. 2.) 3. Camp. Rep.
293; 4. Esp. 191.— (2. )—M 'Donald, June 2. 1813, (F. C.)— (&)— J. Camp. 267.
J. J. Fraser, W. S— Cuningham and Bell, W. S— Agents.
COURT OF SESSION. 367
T. M'Kenzie, Suspender.— •Jameson. No. 219*
R. Noble, Charger. — Skene.
Bill of Exchange-— Prescription.-- Plea of prescription of bill of exchange barred
by letter after Bis years importing an acknowledgment.
Noble, the charger, held a bill for .£50 from the suspender's Feb. 15. 1827.
father, dated in November 1813. In January 1816 the suspender 3d Dl7l810K.
gave his father a promissory note for «£200, which the father in- Bill-Chamber.
dorsed to Noble, to the extent of i?100, in security of the £50 Lord Newton.
bill ; and in November 1820 the suspender granted a letter to Fa
Noble in these terms : — ' I promise to pay you by instalments,
' as soon as I am able, the sum of £50> which my father owes
* you, and for which you hold my father's bill and mine/ Found-
ing on this letter and the j£200 bill, Noble raised an action against
the suspender before the Sheriff of Inverness for payment of the
£50y in which he obtained decree. A bill of suspension was then
presented without caution, on the ground chiefly that the bill
for £%00 was prescribed, and that the letter of 1820, being within
the six years, did not obviate the plea of limitation ; and further,
that as the promise to pay the £50 was only as soon as the sus-
pender ' should be able/ it could not be enforced, he being in
worse circumstances than when it was granted. The answer was,
That the suspender had acknowledged the debt by payments of
interest on the £900 bill, marked on it in November 1820, and
by a letter to the charger, written in January 1826, offering to
pay a composition of £12 for the whole debt ; and that the only
test of ability to pay was ultimate diligence.
The Lord Ordinary refused the bill, and the Court, in respect
of the letter in January 1820, unanimously adhered.
Mack and Wothebspoon, W. S. — J. Arnott, W. S — Agents.
Rev. D. Scot, Pursuer. — Sot.-Gen. Hope— Jameson. No. 220.
W. B. Ramsay, Defender.—/). o/F. Moncreif— Gibson-Craig
— Speirs.
Prescription— Glebe.— The possession by a proprietor of a barony for upwards of
forty years of a piece of ground, formerly the grass glebe of the minister of the
parish, but situated in the centre of the barony, under an agreement by the
presbytery to grant a feu, but without any feu having been granted, held not suffi-
cient to establish a prescriptive right thereto.
In the parish of Corstorphine, besides the glebe and church- Feb. is. 1127.
yard adjoining the church and manse, there was, at about two 2d Division.
miles distance, and which was situated in the centre of and entirely Lord Mcdwyn.
surrounded by the barony of Gogar, which had originally belonged F-
vol. v. 2 a.
968 CASES DECIDED IN THE
.♦
to one of the prebends of the provostry of Coretorphine, and had
been appointed as a grass glebe to the minister of Corstorphine,
another glebe of four acres in extent, with a church-yard. In 1748
Sir Robert Myrton, then proprietor of the barony, made an ap-
plication for the purchase of this glebe and church-yard to the
presbytery of Edinburgh, who, after appointing a committee to
commune with him on the subject, agreed that they should give
him a feu at an annual feu-duty of i?4, (being the then rent of the
glebe,) and that the feu-right should contain all the ordinary clauses
in such rights. They further appointed the committee to get the
feu-right drawn out and executed by the minister of Corstor-
phine, and they empowered the moderator to sign the same in
their name. No feu-right, however, was executed ; but Sir Ro-
bert entered into possession, and regularly paid the stipulated
feu-duty to the several incumbents during his life. On his death
he was succeeded in the barony of Gogar by David Cunninghame,
who in 1790 conveyed it to Ramsay, the defender's grandfather,
and in the disposition the glebe and church-yard were nomination
disponed as ' the glebe and church-yard feued by the presbytery
' of Edinburgh to the said Sir Robert Myrton.9 Infeftment fol-
lowed on this disposition, and the possession of the glebe was con*
tinued as formerly ; but the present pursuer having been inducted
to the living of Corstorphine in 1814, he refused to accept the
stipulated feu-duty, and in 1825 he raised this action, concluding
for reduction of Ramsay's titles—for his removal from the lands—
for payment of the rents of the glebe since 1814 — and also to have
it declared that the pursuer and his successors in the cure had the
only good and undoubted right to the glebe in question.
The defences were,
1. That the glebe being locally situated within the barony of
Gogar, and having in all likelihood originally formed part of that
barony, \he titles to the barony were a sufficient ground on which
to found a prescriptive possession ; and that there having been a
possession for 40 years, it was protected by the infeftment of the
defender's authors in that barony.
2. That as a glebe is possessed without a feudal title, a convey-
ance not feudal is sufficient to found a title to prescribe in a third
party ; and,
3. That this glebe having been appointed to the minister as a
grass glebe, an exchange of that for an annual sum equal to the
legal money allowance in lieu of a grass glebe, sabctioned by the
presbytery, could not afterwards be challenged, on the same prin-
ciple that a grass glebe cannot be demanded where the statutory
allowance has been accepted under sanction of the presbytery.
COURT OF SESSION. 869
The Lord Ordinary repelled the defences, and the Court ad-
hered.
Lord Justice-Clerk.— I am ready to admit the hardship of this case,
but I most lay that out of view. It is clear that there was not on
the face of any document a real infeftment in this piece of ground
till 1790. Then, when we go back to the origin of the possession,
we see there is an acknowledgment that it was no part of the barony,
for Sir Robert Myrton proposes to purchase it as a glebe which had
belonged to the provostry of Corstorphine ; and, as observed by the
Lord Ordinary in his note, it appears from Keith's Catalogue that
Gogar was a parsonage at the time of the Reformation. Now, the
presbytery had no right to grant a feu ; though, if they had done so,
and infeftment had followed with a prescriptive possession, it never
could have been challenged, as was found in the case of Falkland.
But the presbytery never granted any document on which infeftment
could be taken. Sir Robert entered into possession, no doubt, but
the possession was without any title till 1790 ; and, in the convey-
ance then granted, it is expressly said to have been feued by the pres-
bytery, which excludes the notion of its being part of the barony,
though it may be locally situated within it, as to which we have no
sufficient evidence. I cannot, therefore, refuse the minister s claim
now ; for, if the' ground in question is to be held to have been pos-
sessed as part of the barony, the minister would not even have a
claim for the £ 4.
Lord Pitmilly. — I am of the same opinion. Ramsay's plea can only
be one of prescription on the old titles. He cannot found it on the
contract' as a title, or on the disposition 1790, as forty years have
not run ; he must therefore make it out on the old titles. But he
has not proved the glebe to have been originally part of tbe barony ;
and although he had, the possession rested on the bargain with tbe
presbytery, which was utterly inconsistent with the notion of its
being part of the barony. This is not at all the same with the case
of Stonykirk.
Lord Allow ay. — I entirely concur. There was no title on which
prescription could run. The glebe was so at the Reformation, and
we do not see the date of the barony ; but at any rate the defender's
own titles set forth the glebe as a separate tenement, and he cannot
maintain the plea that it was part of the barony. The case of Stony-
kirk does not at all apply. There was in that case a designation of
part of the estate of Ardwall, but it had never been carried into
effect. Tbe ground had never been possessed by tbe minister, and
continued always to be possessed as part of tbe estate of Ardwall.
Lord Glenlee. — It is plain that the conveyance in 1790 is out of
the question, as is also tbe attempt to apply the possession to tbe old
titles ; for, by the defender's own statement, it was not actually pos-
sessed as part of the barony. But the matter does riot appear to me
2a 2
370 CASES DECIDED IN THE
to be completely sifted to the bottom. I am not .satisfied that in-
feftment was necessary to found a title for prescriptive possession, as
this was an allodial, not a feudal property. If an allodial proprietor
assign his right, and the buyer possess, is not that enough ? The
only way in which this is made out to be a glebe is, that it was as-
signed by decree of locality ; hut the Court of Teinds had no right
to assign it. It may have been part of the barony, and what right
had the Teind Court to give it to the minister as a grass glebe ? And
if this be challengeable, it will be enough to support the defender's
right.
Defender'* Authorities.— (1.)— 2. Ersk. 1. 30; Minister of Stonykirk, June 10.
1724, (10819.)— (2.)— 3. Ersk. 7. 3 ; 2. Stair, 12. 8.— (3.)— 1663, c. 21 ; D. of
Argyll, July 9. 1807, (F. C.)
• •
Murray and Inglis, W. S. — Gibson-Craigs and Wardlaw, W. S.
—Agents.
No. 221« J- Macleman, Pursuer and Suspender. — Jeffrey — A. McNeill.
D. Cameron, Defender and Charger. — Skene — Anderson.
Process— 6. Geo* IV. c. 120.—^. S. Nov. 12. 1825, } 69.— Expenses.— The nomi-
nal raiser of a multiplepoinding having allowed decree of consignation to pass
against him in absence, and diligence to be raised on it, and having brought a
suspension, and the charger not having lodged answers to the reasons — Held,—
1. — That although the charger had failed to do so, yet, in the circumstances,
he was not liable in expenses of process ; — but, — 2*— That the raiser was liable
in those incurred relative to the opening up of the decree.
Feb. 16. 1827. A summons of multiplepoinding having been raised by Cameron
1st Division *n name °^ Macleman, which was duly intimated to him in terms
Lord Meadow- of the Act of Sederunt, he failed to appear ; and being held as
bank. confessed, and decree of consignation having been pronounced
and extracted, a charge was given to him, of which he presented
a bill of suspension, which was passed. The letters having
been expede, Cameron, conceiving it unnecessary to lodge answers,
did not do so, as he did not mean to oppose the depreet being
suspended, but merely to insist for the previous expenses. Thje
suspension was then remitted to Lord Meadowbank ob contingen-
tiam of the multiplepoinding which depended before him ; and
Macleman thereupon moved that, in respect of no answers, the
letters should be suspended simpliciter, and expenses found due.
Accordingly his Lordship suspended them, and found Cvmeron
liable in the whole expenses of the suspension, appointed answers
to be lodged to a condescendence in the multiplepoinding, and at
the same time Macleman having proposed to lodge objections to
the competency of the multiplepoinding, he refused to receive
s.
COURT OP SESSION. 371
them, except on payment of the previous expenses of that process.
Both parties having reclaimed, Cameron lodged answers, and
contended,
1. That as it was only in the case of a party * resisting' a sus-
pension, as provided by § 48th of the Judicature Act, that it was
requisite to return answers to the reasons of suspension, and as he
did not intend to resist the letters being suspended, it was not
necessary for him to lodge answers, and therefore he ought not
to have been subjected in the expenses of the suspension ; and,
2. That, on the contrary, as the suspension was equivalent to
a note to be reponed, and as this would not have been granted
to Macleman without payment of the previous expenses, he ought
to be found liable in them.
To this it was answered,
1. That the provision of the 69th section of the Act of Sede-
runt, 12th November 1825, was imperative, t that when letters of
' suspension have been called,. or are given out to see, answers
' shall be returned, as defences in the case of ordinary actions ;'
and as it was further provided that, when defences were not re-
turned, decree of absolvitor, with expenses, should be pronounced,
Cameron must of necessity be found liable in them ; and,
2. That such being the case, Macleman could not at the same
time be found liable in expenses.
The Court * conjoined the two processes, recalled the interlocu-
* tor in the said multiplepoinding reclaimed against by Daniel
c Cameron, altered the interlocutor reclaimed against in the pro-
' cess of suspension, and recalled the same in so far as it finds the
' charger liable in expenses ; found the said John Macleman liable
' in the expenses incurred by his failing to appear, and allowing
* a decreet in absence to pass and be extracted and put into exe-
* cution against him, and applying by suspension to be reponed
* thereagainst, as well as the subsequent expenses incurred by
* the said Daniel Cameron in said actions ;' and remitted to the
Lord Ordinary to proceed in the cause.
Lord Gillies. — Cameron ought to have answered the suspension in
terms of the Act of Sederunt. It is not sufficient to say that he
considered this unnecessary, because the act is imperative, and he
ought to have explained that he did not intend to oppose the sus-
pension.
Lord Craigie. — If it were a statutory regulation, we might perhaps
be compelled to find Cameron liable in expenses ; but it is not so.
Lord Gillies. — We cannot disregard our own Act of Sederunt,
without throwing every thing loose.
Xord President. — If it order defences or answers to as aupension.
372 CASES DECIDED IN THE
and I find it unnecessary to lodge them, am I to be compelled, under
the pain of expenses, to do so ? Besides, the act of Parliament says
that answers are to be lodged only in the case of * the party resist -
'ing the suspension.' Cameron therefore cannot be subjected in
expenses, but Macleman must be so in so far as regards the sus-
pension.
Lord Balgray concurred.
L. Mackintosh, — W. M'Kenziz, W. S, — Agents.
«
No. 222. A. Marjoribanks Junior, Suspender.— Jameson.
T. Hodldswoeth and Others, Chargers.— i?trfter/i*r£
Feb. 16. 1827. This was a question as to passing a bill of suspension. The
1st Division. ^ot^ Ordinary refused it, both in respect of no caution, and on
Bill-Chamber, the merits ; but the Court altered, and passed simpliciter.
Lord Newton.
D. A. Donald, W. S. — A. C. Howden, W. S* — Agents.
No. 223. J. M'Nair.— Futkrton— Brown.
R. M'Naib and R. Beunton. — Rutherfurd — Gibson-Craig.
Competing.
Heritable Security. ~ 1.— A bond with a double holding, and infeftment following,
preferred to a prior bond with a public holding, the infeftment on which was un-
confirmed ; — anil, — &.— A bond granted in security of two bills specifically nar-
rated, not vacated in consequence of these individual bills having been retired
by subsequent renewals, the debt remaining undischarged.
Feb. 16. 1827. Mb. M'Naiti, merchant in Glasgow, in security of a loan of
2d Division. «£2000, granted to James ATNair an heritable bond over a pro*
Lord Macken- perty held by him in feu under a subject superior for payment
M,j^ of a penny Scots feu-duty. In the obligation to infeft contained
in this bond, Mr. M'Nair bound himself * to infeft and seise the
' said James M'Nair, &c in the respective subjects before de-
' scribed, to be holden in the same manner, and for payment of
' the like feu-duties, that I hold or may hold the same, and that;
' either by charters of resignation or confirmation, or both, the
f one being always without prejudice to the other.' The pre-,
cept was in these words : — * I hereby require you and each of
* you, jointly and severally, my bailies in that part hereby spe-
. ' cially constituted, that on sight hereof ye pass, &c. and there
' give and deliver heritable state and sasine,' &c. Infeftment
taken on this bond on the 19th of October 1819, and duly
corded ; but no confirmation was obtained.
COUBT OF SESSION. 373
Subsequently to this, Mr. M'Nair had been accommodated by
Robert JTNair and Brunton with two acceptances of i?2000 each,
—the one dated 28th October 1819, and the other 1st July 1820,—
which were discounted with the Royal Bank ; and on the 9th
August 1820 he granted to them over the same property an herit-
able bond of relief for the sum * contained in the said two bills
'or promissory notes,' which were specially mentioned in the
bond. This bond contained a double manner of holding a me
vel de me, and infeftment was immediately taken on it, and the
infeftment recorded.
Mr. M'Nsir's estates having been subsequently sequestrated,
the lands over which these securities were granted were sold by
* the trustee, who brought a multiplepoinding as to the disposal of
the price. In this process claims of preference were lodged for
James M'Nair, and for Messrs. Robert ATNair and Brunton.
To the claim of the former it was objected, that his bond could
only authorize a public holding ; and that there having been no
confirmation obtained prior to the infeftment on the second bond,
it must be postponed to that bond ; while to the claim for Messrs.
M^Nair and Brunton it was objected by James M'Nair, that the
specific bills for which the bond in security was granted had been
duly retired, whereby the bond had been vacated, on the prin-
ciples of the decision in the case of the Bank of Scotland ». the
Bank of England, (14121); and although it was alleged that
they had been merely retired by renewals which were still un-
paid, he contended that there was no sufficient evidence that the
bills now said to constitute the debt were really renewals of the
specific bills for which the security was granted. The Lord Or-
dinary and the Court, however, being satisfied that these were
truly renewals of the original bills, and being clearly of opinion
that James M'Nair's security authorized only a public holding,
and was consequently subject to the same objection which occurred
in the cases of Rowand v. Campbell, (ante, Vol. III. No. 141,)
and Struthers v. Lang, (ante, Vol. IV. No. 281 ,) preferred Messrs
Robert M'Nair and Brunton to the fund in medio.
J. and Wi Jollie, W. S« — Gibson-Craigs and Wardlaw, W. S. —
Agents.
374 CASES DECIDED IN THE
No. 224. Habbowab's Trustees, Pursuers.— More.
Cocjper's Tbdstees, Defenders. — FuUerton—Brownlec.
Adjudication.— No ground for staying intimation of a first adjudication, that the
debtor had executed a trust-deed of all his heritable property for behoof of his
creditors, on which the trustees had taken iufeftment.
Feb. 16. 1827. .Lobd Macxekzie reported this case, which was a first adjudi-
2 ~d~Ton <*ti°n le<* at the instance of Harrowar's trustees against Couper,
Lord Macken- in reference to an objection taken to the usual motion for inti-
*ie* mation.
Couper had executed a trust-deed of his whole heritable pro-
perty for behoof of his creditors ; but to this Harro war's trustees,
who were creditors, declined to accede, and they raised a sum-
mons of adjudication against Couper, to which his trustees, who
' had been duly infeft on the trust-deed in their favour, put in de-
fences, stating that as Mr. Couper was completely divested by
the trust-deed, it was incompetent for any of his creditors to pro-
ceed by adjudication against him without setting aside the trust-
deed, and infeftment following on it, which was not attempted ;
and on this ground they opposed the motion for intimation. On
the other hand it was contended for Harrowar's trustees, that the
existence of th€ trust-conveyance was no bar to an adjudication,
which would at least carry the reversionary interest ; but at all
events that this was a plea on the merits, which could not, under
the new forms, be discussed till the record was closed, and that it
was impossible to allow intimation to be delayed till then.
The Court, being unanimously of opinion that there were no
grounds for staying intimation, directed his Lordship to pronounce
an order accordingly.
Lord Glenlee. — I understand that intimation cannot be stopped,
unless the defender can show instanter that there are no grounds for
adjudging, as if he produce a discharge of the debt. It is perfectly
settled, however, that the existence of a trust-deed is no objection
to a non-acceding creditor adjudging. It may, no doubt, be to little
purpose ; but, as the truster is not divested of the beneficial interest,
a creditor may adjudge for the reversion ; and so, although originally
the^ first adjudication was held to denude the debtor, it was never
imagined that this precluded a second, or any number of subsequent
adjudications.
The other Judges concurred, observing that the case of Tait, quoted
for tbe defenders, had no application here.
Defenders' Authority.— Queensberry Executors p. Tait, July II. 1817, (F. C.)
Campbell and Mack, W. S— T. Mbggbt, W. S.-7-Agents*
COURT OP SESSION. 375
Magistrates of Lauder, Pursuers, Advocators, and Chargers. No. 225'.
—Skene— M'Neitt.
A. Spence and Others, Defenders, Respondents, and Suspenders.
— D. qfF. Moncreiff—Christism.
Et e contra.
The Court adhered. to an interlocutor of the Lord Ordinary Feb. 16. 1827.
finding no expenses due to either party in various conjoined 2d DlvlBI02f
mutual processes of declarator, advocation, and suspension be- Lord Macken-
tween the Magistrates and certain burgesses of Lauder. zie*
B.
W. Renny, W. S— Tod and Romanes, W. S— Agents.
Sea Insurance Company of Scotland, W. Braidwood, their No, 226.
Manager, and Others, Suspenders. — Rutherfurd.
J. Gavin and Others, Chargers. — Forsyth — N eaves.
Title 1* Sue ami be Sued— Society.— The Court sustained a libel and charge di-
rected against an Insurance Company not incorporated by charter, and against
the manager and certain individual directors who had subscribed the policy of
insurance on which the action was brought.
•
Gavin and others, owners of the brigantine Sarah of Leith, Feb. 17. 1827.
which had been wrecked in the bay of Saloe in Spain, raised a a T"-
, „ J - . . . , f \ 2d Division.
summons or precept in the Court of Admiralty, setting forth Admiralty.
that by ' policy of insurance, bearing date the 17th August 1821 p.
years, made and granted by the Sea Insurance Company of
Scotland, and underwritten or subscribed by Robert Gordon,
George Mylne, and Colin M'Nab, three of the ordinary direc-
tors of and for the said Sea Insurance Company of Scotland,
to and in favour of the said John Gavin &c, he the said John .
Gavin did make assurance,' &c. The libel then, after detail-
ing the particulars of the shipwreck of the vessel, proceeded
to subsume, ' That, a total loss has been sustained by the pur-
suers of the said brigantine or vessel, the Sarah, her furni-
ture and materials; and the said Sea Insurance Company, ma-
nagers, directors, and partners thereof, are liable in indemni-
fication to the pursuers of said loss, in terms and by virtue of
the aforesaid policy, to the amount of the foresaid sum of i?1200
sterling underwritten thereon by them as aforesaid : And although
the pursuers have frequently desired and required the said Sea
Insurance Company, and William Braidwood, their manager,
and a partner thereof, and the said Robert Gordon, George
Mylne, and Colin M'Nab, who subscribe the sard policy, to
376 CASES DECIDED IN THE
' make payment to them of the foresaid sum, and interest thereof,
* but under deduction as after mentioned, yet they refuse^ &c.
The conclusion then followed thus : — ' Therefore the said Sea
' Insurance Company of Scotland, the said William Braidwood,
' Robert Gordon, George Mylne, and Colin JVTNab, ought and
* should be decerned and ordained, by decree of the Judge of
' our said High Court of Admiralty, to make payment to the
6 pursuers of the aforesaid sum of ,£1£00 sterling/ &c. <*•
Defences against this action were lodged in name of c The Sea
' Insurance Company of Scotland, and William Braidwood junior,
' their manager ;' and, after considerable litigation in the Court of
Admiralty, decree was pronounced in terms of the summons, and
horning was executed thereon in similar terms, the messenger's
execution being as follows : — c A full double to the will, with a
c just copy of charge to the effect foresaid thereto subjoined* I
' left for the Sea Insurance Company of Scotland, as a company,
' in the hands of a clerk within their counting-room in Hunter
' square, Edinburgh, for their behoof; the like double and copy
' of charge I delivered to the said William Braidwood, personally
* apprehended ; and the like double. and copy of charge I left for
* each of the said Robert Gordon, George Mylne, and Colin
' M'Nab, in the hands of a clerk within the said insurance office
4 aforesaid,1 &c.
Of the horning thus executed, a suspension was brought in the
name of ' The Sea Insurance Company of Scotland, and William
' Braidwood, manager of the said company, and Robert Gordon,
' George Mylne, and Colin M'Nab, directors.'-
After some procedure had taken place in discussing* the merits
of the cause, a doubt was started, in consequence of certain
difficulties said to have been entertained in the House of Lords
in regard to cases then depending with the Commercial Banking
Company and the Glasgow Bank, how far the suspenders, not
being a corporate society, could sue or be sued under their de-
nomination of the Sea Insurance Company, or through their
office-bearers ; and the Court, considering this objection to be pars
judicis, after delaying the cause for some time in expectation of
a judgment by the House of Lords in the actions now alluded to,
ordered Cases on the point.
In these Cases the suspenders argued,
1 . That no self-constituted society could sue as a corporate body,
either by its name or through its office-bearers, as hqjl frequently
been decided in the case of mason lodges and similar associations ;
and that although a mercantile company might sue by its proper
firm, whereby it subscribed its obligations, it had been settled in
COURT OP SESSION. ff77
the case of the Culcreuch Cotton Company that it could not sue
by a mere name or designation ; and accordingly, as the liability
to be sued was co-ordinate with the privilege of suing, the pre-
cept and charge in this case were incompetent ; and,
2. That the objection was not removed by the introduction of
the names of individual directors, because they were not sued in
this cafe as individuals, but solely in their character of office-
bearerrof a self-constituted society ; and being so called, a persona
standi could not (agreeably to the principles of the decision in
the case of Wilson v. Kippen) be given them by the circumstance
of their having an individual interest, in respect of which no ac-
tion was brought against them, and in which character they had
not entered appearance.
On the other hand, the chargers, besides contending that the
objection could only go to the dismissal of the suspension as in-
competently brought, maintained,
1. That although self-constituted associations for trifling or
special purposes were not capable of suing or being sued, yet, by
the law of Scotland, societies for the purposes of trade had always
been allowed this privilege, however numerous their partners
might be ; that such partnerships were undoubtedly entitled to
sue under their social firm, and that there was no real distinction
between what was called a firm, (the names in which were frequently
of persona no longer partners, and perhaps long since dead,) and
a mere denomination ; and as to the case of Culcreuch, that the
objection there was obviated in the present case in consequence
of there being individual partners or directors named, against
whom diligence might proceed ; and,
2. That, at all events, the conclusions in the precept against
the individuals who had themselves subscribed the policy on which
the action was founded, was sufficient to support the action, they
being personally responsible for the whole obligations of the com-
pany undertaken in their names.
The Court repelled ' the objection to the competency of the
* libel and charge/ and ordered the cause to the roll for judgment
on the merits.*
Loan Justice-Clerk. — We were not anxious to stir this question ;
hot we had our attention called to it by the proceedings in the
House of Lords in the cases of the Commercial Bank and manager,
and the Glasgow Bank and manager. These remained for the con-
sideration of the House of Lords, and it was therefore proper for us
• Sec infra, March 3.
378 CASES DECIDED IN THE
to pause ; but as there is no likelihood of a speedy decision of these
cases by the House of Lords, and as the chargers have been met in
a new action by the plea of lis alibi pendens, we must dispose of the
question. It is no doubt attended -with considerable difficulty, and
I cegainly was anxious, if possible, to get over the difficulty. I am
satisfied, however, that the case of the Culcreuch Cotton Company was
rightly decided. There is a complete distinction between proper firms,
consisting of the names of partners with the company, by which the
obligations of the company are subscribed, and a mens descriptive
denomination. I have no doubt of the right of a company to sue
and defend under such proper firms as Sir William Forbes and
Company, who, by the way, do not sign Sir William Forbes and
Company, but William Forbes and Co. Firms are very different
from names. What, then, is the case here ? The summons states the
policy to have been entered into by the Sea Insurance Company,
and the individuals named are set forth as managers and directors
thereof; and we are not entitled to say that the conclusion against
them is against them merely as individuals who had signed a po-
licy. It is against them in the capacity already set forth in the sum-
roons. We cannot throw out of view that the action is truly against
the Sea Insurance Company. The action brought is not against the in-
dividuals ; and the question here at issue is, not whether an action
might not lie against these parties as individual partners of this
company who had signed a policy, but whether an action can be
brought against the company by calling their office-bearers as such ?
And it brings out, therefore, the point decided in the case of the
Culcreuch Cotton Company. There is here, as in that case, just a
name, with this difference, that a manager and directors are added,
not as individuals, but as managers of a self-constituted company.
This, however, does not cure the defect. I do not lay much stress
on the case of mason lodges, though in these cases also, as here, we
had individuals as managers added to the body.
Lord Pi tm illy. — There are two points for consideration here:—
1. Where there is a mere descriptive designation of a company,
and nothing more, I must hold myself bound by the decision in
the case of the Culcreuch Cotton Company ; and although I think
that decision right, still it was a new decision ; but it was right lor
this reason, that I do not see how diligence is to be done against a
company called merely by its designation. But I -must hold, for any
thing I have seen, that that was the first case of the kind ; and al-
though there is a wide distinction between a case of that kind and
one where a proper firm is used, still many actions were received by
the Court pursued by companies under such designations, as the nu-
merous actions at the instance of the York Buildings Company. Yet
the case of the Culcreuch Cotton Company is rightly decided, and I
would follow it as to the Sea Insurance Company, if they had been
called under that name alone, without any individual partners. 2. But
COURT OF SESSION. 879
it comes to be different when you hare names' in addition* If we had
names alone, would the action not be good? and can the circumstance
of The Sea Insurance Company, being added to the names make
it worse? I cannot distinguish between this case and that of Sir
William Forbes, James Hunter, and Company, as these are names
of parties not now alive. A name like this with individuals is not
so much of the nature of a mere designation as a firm is; and if ac-
tion can be sustained in the one case, I think it may also in the
other, although I certainly have great doubts, and give my opinion
with much hesitation*
Lord Alloway— This is a question of great difficulty and import-
ance. All the decisions quoted by the suspenders are well decided,
but none of them rules the present; and we must therefore go to
general principles. Lord PitmiUy has alluded to the York Build-
ings Company. That company, no doubt, was erected by act of
Parliament, but only for raising water- in the York Buildings, and
not for buying land in Scotland ; so that, in regard to questions aris-
ing out of these purchases, suits at their instance by their company
name could not be authorized by the act; yet no objection was
ever taken to those suits which ibey pursued by the company, and
an individual name as governor. The remark of Lord Bankton on
the case of the Lanark Mason Lodge explains the principle on which
such cases were decided — that a private society is not entitled to
make regulations binding on its members. It is a sound observation by
the chargers, that there is no real distinction between mercantile
companies, with partners to any extent, suing by any name, as well
as by that of parties who do not exist, or, as it sometimes happens,
by fictitious names, such as Goodluck and Company, Hazard and
Company, &c If individuals are held out who may be prosecuted
and may prosecute on contracts entered into by them, that is enough.
I know of no precedent in Scotland to stop a process of this kind,
and I see no ground for introducing a new law. Is there any differ-
ence between such names with partners, and a firm ? I can see none.
There is another equally important point. What could prevent the
Judge- Admiral from pronouncing judgment against the four indivi-
duals against whom horning has been raised ? Even take the case
of a mason lodge entering into a contract by four office-bearers, say.
for building a lodge : Could not the tradesman bring his action
against the lodge and the four individuals ? I conceive that lie could.
Such is the opinion I have formed, although I should have wished
to have bad more time, as I only got one of the papers last night.
I may add, that from the English cases quoted, it appears that whe-
ther the company be good or bad, even bubble companies, parties
taking the management, or being partners, are liable to fulfil all the
obligations of the company.
Lord Glenlee. — As to the two cases in the House of Lords, we do
not know what was the form of the summons, and so can say nothing
880 CASES DECIDED IN THE
about them. But besides, I have great doubts of founding any thing,
in deciding a case before us, on what we hear extrajudicially has
passed in the House of Lords. Till the decision by that House, we
must decide here as if no such proceedings had taken place ; and I
do think, according to the practice of Scotland, that the original sum-
mons in this case was' a sufficient libel As to descriptive names,
they are not bo different from firms as is supposed. The case of the
Culcreuch Company was not the first case where action was re-
fused on a descriptive title without any individual instance ; and as
to defending, I cannot well see how a company so named is to be
cited. I refused, as Ordinary, many yean ago to sustain such an ac-
tion at the instance of the Muirkirk Iron Company ; hot that has no
•• application to the present ease. - Whatever the narrative of the sum-
mons here may be, the conclusions are not against the Sea Insur-
ance Company and the individuals as antcfort, but they are laid
against them as individual*. The decree, no doubt, hears also the
Sea Insurance Company ; hut supposing there had been no such
company, the individuals would be liable directly and individually.
H they choose to present a hill of suspension as the Sea Insurance
Company, how can they come forward and say they have a persona
in that character to the effect of suspending, and not a persona to
the effect of decree going against them ?
Rutherford*— The opinion of the majority of the Court being that the
instance of the suspenders is good, I submit that there should be a
finding sustaining their title as suspenders in this suspension, by
which means alone the Court can judge of the original summons and
decree.
Lord Glenlee. — I do not see that we are called upon to sustain the
title as set forth in the suspension. It appears to me that the proper
interlocutor will be, to repel the objections to the competency of the
libel and charge.
In this suggestion Lords Pitmilly and Alloway concurred.
Suspenders' A%Uhoritiesj—(\.) — Ma/on Lodge of Lanark, June 11. 1730, (14554) ;
Crawford and Mitchell, June 13. 1761, (1958) ; Lawson, July 7. 1810, (P. C.) ;
Culcreuch Cotton Company, Nov. 27. 1822, (ante, VoL II. No. 46.) — (2.) —
Wilson &c. ci. Kippen &c. June 7- 1823, (ante, Vol. II. No. 359.)
Chargers* Authorities.— Thomson, July 2. 1812, (F. C.) ; Carter v. Drury, (Vesey
and Beamcs, 154.)
Inglis and Weir, W. S. — W. Smith, — Agents.
COURT OF SESSION. 881
*
J. Oswald and A. Waddkll, Pursuers. — Sol-Gen. Hope-— No. 227-
Fullerton.
J. Lawrie and Others, Defenders. — D. qfF. MoncreijjF— Ivory*
Title to Purtue—Road. — Action for the removal of obstructions erected across a
road, alleged to be a public road, sustained at the instance of two proprietors
in the parish designing themselves by their estates, and as * two and a com*
' mittee of the trustees for the parish, &c. under the Statute Labour Act for the-
' county/ Sec.
By the Statute Labour Act of the county of Lanark, all persons Feb. 17. 1827.
qualified by the possession of a certain extent of land are declared 20 Division
to be trustees, and certain powers are given to parish trustees, Lord Macken-
who are directed to hold annual meetings within their own parish. zie-
In particular it is declared that the parish trustees < shall super-
4 intend and have the direction and management of the several
' roads, bridges, fords, and ferries within their respective parishes;1
and that if any person shall erect a building within a certain dis-
tance of the centre of the road, * it shall be lawful for the parish
' trustees to order the said buildings to be removed/ &o. ; but the
act contains no provision as to the persons in whose names suit*
may be brought or defended. For the purpose of removing gates
which had been placed at the ends of a Btreet or road in the parish
of Govan, on the south bank of the Clyde, near the city of Glas-
gow, and of having it declared a public road, an action was raised
at the instance of ' James Oswald, Esq. of Shieldhall, and Alex-
( ander Waddell, Esq. of Stonefield, two and a committee of th6
' trustees for the parish of Govan under the Statute Labour Act
* for the county of Lanark.1 An objection having been taken to
their title and instance as thus set forth, the Lord Ordinary ap-
pointed them to give in a minute, stating in what character they
insisted. A minute was accordingly lodged, in which they stated,
* That they pursue the present action in two characters : 1. As a
* committee for the parish of Govan of the trustees under the Sta-
4 tufce Labour Act ; 2. As individual proprietors within the parish
' of Govan, who apprehend they have an interest to remove ob-
* structions from the highways and public roads in their neigh-
* bourhood.'
Thereupon the defenders contended, in support of their objec-
tion to the title and instance,
1. That no power being given by the act of Parliament, dele-
gating to parish trustees the right to sue as an independent body,
no action by road trustees as such could be sustained, unless by
the aggregate body of trustees for the whole county.
£• That supposing an Action could be raised by the trustees of
1
382 CA.SES DECIDED IN THE
a parish, it could only be done in name of the trustees, and not
by a committee.
3. That the pursuers here had not beefl appointed a committee
with authority to raise the present action ; and,
4. That in so far as the action was insisted in by the pursuers
for their individual interest, there was no instance set forth as
individuals, the action being brought by them as two and a com-
mittee of trustees.
For the pursuers, on the other hand, it was pleaded,
1. That certain gpwers being given to parish trustees by the
act of Parliament, they must necessarily have the right of carry-
ing them into effect by following out actions in a Court of Law.
2. That a body entitled to sue might appoint commissioners, in
whose name the action might be brought ; and that it was The uni-
versal custom for trustees under acts, like the Lanark act^ provid-
ing no special mode of suing, to raise actions in the manner which
had been adopted here.
5. That the pursuers had been appointed a committee to see
certain previous processes before the Inferior Court, for removing
the obstruction complained of, carried on ; that the present action
was subsidiary to these former measures ; and thoQgh there was
no specific mandate for raising it, subsequent meetings of the
parish trustees had expressly approved of it, and authorized the
pursuers to proceed in following it out to an issue ; and,
4. That the designation of the pursuers by their estates situ-
ated in the parish, and as trustees, (a necessary qualification of
which character was the possession of land within the parish,) was
a sufficient setting forth of their character as individuals to sup-
port the action for their individual interest.
The Lord Ordinary having sustained the title, the defenders
reclaimed. The Court at first altered the Lord Ordinary's inter-
locutor, and ' in respect of the defect in the libel,' sustained the
objections to the U$£, and assoilzied ; but, on advising a reclaim-
ing petition for the .pursuers, with answers, their Lordships re-
turned to the interlocutor of the Lord Ordinary.
Lord Justice-Clerk. — I concurred in the interlocutor reclaimed
against when it was pronounced ; but I am now satisfied that we
ought to alter it, and return to that of the Lord Ordinary ; for, on
reconsideration, I think we have put a judaical construction on the
libel. The pursuers have brought an action as two and a committee
of trustees, and talcing them merely as individual trustees, we know
that it is a necessary qualification that they should possess land in
the parish ; and although, therefore, we had been of opinion thmt the
parish trustees could not sue by a committee, (which I do not think
COURT OF SESSION. 383
is the case, as the decision in Low r. Arbuthnot, in the First Divi-
sion, is an authority in point in favour of their so suing,) yet, as indi-
vidual trustees, they have a right to bring this action; and I conceive
that any trustee may challenge obstructions on roads placed under
their charge as guardians to preserve them for the use of the lieges.
Lord Glenlee*— The pursuers, no doubt, cannot mmmfrMfl under this
libel the conclusions as mere individuals ; but they are entitled to do
so as individual trustees. It is quite unintelligible that the Legisla-
ture should give powers without the means of exercising them.
Parish trustees may therefore by the statute apply to have ob-
structions removed, and that was first done here ; then this action,
authorized by the parish trustees, is just an incidental step to enable
them to remove die obstruction they are entitled by statute to do. I
am therefore now inclined to alter the interlocutor, in which I form-
erly concurred, and to sustain the action.
Lord Pitbull y. — I also concurred in the interlocutor reclaimed
against, and I am in like manner satisfied that it must be altered.
Lord Allo way.— Having been against the interlocutor when pro-
nounced, I of course concur in altering*
Purtucr*' Juthoritiei.—Bow, Dec. 6. 1825, (ante, Vol. IV. No. 207) ; Low, June
1. 1826, (ante, Vol. IV. No. 399.)
Defender*' Authorities.— Coulter, June 1 1. 1823, (ante, Vol. II. No. 367) ; Fleshers
of Dumfries, Dee. 10. 1815, (F. C.)j Wilson, June 7- 1823, (ante, Vol. II.
No. 359.)
D. Fisher*— Gibson -Craigs and Wardlaw, W. S— Agents.
Lieut Stewart, Complainer.— 5bZ.-Gk». Hope — Keay. JJo. 228.
Earl of Fife and Others, Respondents. — Thomson — Robinson.
Freehold Quaii/teaiie*~Sashu.~Ht\&?—U—Th*t although a disposition contain-
ing procuratory and precept, on which sasine is taken, be confirmed by a charter
of confirmation and resignation, yet it is still competent to take sasine on the pre-
cept in that charter, so as to make up titles by resignation ;— 2.— That a party
who is both dispone© and heir of line of a disponer is entitled to be enrolled a
freeholder, as heir apparent of the disponer ; — but,— 3.— That part of the lands
claimed on, as affording a freehold qualification, having been omitted in record-
ing the sasine founded on, the claim is ineffectual.
On the 10th* of December 166S Elizabeth Strachan and her peb. 20. 1327.
four sisters obtained a special service, as heirs-portioners of their , -
1 St Division
grandfather, * in omnibus et singulis villis et terris de Eistertown Lord Meadow-
* de Lesmurdie, tenia* parte terrarum de Inverquherache, tertia bank.
4 parte terrarum de Auchnastank, et tertia parte terrarum de Bel- Sa
* cfairie, cum earundem pertinen., omnes jacen. infra parochiam
* de Mortlicbe, et vicecoraitatem de BamflV The valent clause ,
was in these terms :— * Et quod omnes et singula? predict® terra?,
' aliaque particulariter suprascript., cum pertinen. earundem, valu-
vol. v. 2 b
384 CASES DECIDED IN THE
< erunt per annum, teaafKmpaci^fa-esU^^
* monettt regni Seoiiie, et nunc valent per annum quatuordecim
* libra* monetae prodictss.* By these Indies the lands were con-
veyed to Alexander Stewart, and they were thus described in a
charter of resignation which he obtained on the 4th of March 1696 :
" Totas et integras terras de Eastertown de Lesmurdie, inibi com-
' prehenden. tertiam partem terrarum de Inverquharachie, tertiam
'* partem terrarum de Auchnastank, cum tertia parte terrarum de
* Bellschirrie ; molendinum de Lesmurdie, terras molendinarias,
c multuras, sequelae, et lie knave^hjp* earund., terra* de Dry-
1 wells* Bridgehead^ Coldstripe, TombftUy* MUntouoe; terras
< earund, mQlendinaqw ; Oldtreet SuggqU* Fortriestock, cum
* domibus,' &c.
In 1726 Alexander Stewart, on the marriage of his mm Francis
(primua) with Mis* Elspeth Gordon, granted a deposition under
the contract of marriage in his favour of the above lands, con-
taipiag procuratory of resignation and pveoept of sasine> is -vir-
tue of which Francis was infeft on the Slst of October of that
year. On the 27th February 1747, he obtained, in virtue of
the procuratory of resignation, a Crown charter, which, after nar-
rating the act of resignation, contained a confirmation of the
disposition in the marriage contract, and sasine thereon, in these
terms : — ' Et nos ratificavimus, approbavimus, et confirmavimus,
* sicut tenore presentiutn, cum avisamento at consensu predict., ra-
c tificamus, approbamus, et confirmamus predict, contractum ma-
* trimonialem init. inter diet. Franciscum Stewart et Elspetam
1 Gordon, cum avisamento et onus suscipieu, modo supra men-
* tionat., cum instrumentis sasinse desuper suscept., in uniyersis
' capitibus, clausulis, tenoribus, et oonteniis earand., cam omnibus
* desuper secutis vel sequendis: Atque nos voknnus et eoneedi-
*« mus, et pro nobis nostrisque regiis successoribus decernimus et
* ordinamus, prsesentem hanc generalem confirmationem tarn vali-
* dam, efficacem, et sufficientem, simiftsque roboris et eftctua esse
4 ad omnes intentiones et proposita, ac si predict contractus ma-
1 trimonialis, atq. infeofamenta desuper suscept., in hisce present-
' ibus verbatim de^cripta fiiissent, etiarasi id non ita faet. sk.*
In virtue of the precept in this charter, Ftanc* on the 14tk of
March thereafter took sarine, which was recorded. In the instru-
ment of sasine it waa Stated, that the charter had been delivered to
the notary ' perlegendum, publicandum, et vulgari sermon© adstan-
* tibus exponendum,' which he accordingly did* and the clause
of delivery bore that sasine was given, < diet vilhe et tenaram
( de Eastertown de Lesmurdie (inibi oomprehendan. tertian paxw
1 tem terrarum de Invercharracby, tertiam* partem terranim de
COURT OP SESSION. S85
' Attetaastaak, una cum tertia parte terrarum de Belchirrie, mo-
* lendinufn de Lesmurdie,) terras molendinariae, multuras, se-
« quelas, et lie knaveships ejusd.,' &c. ; and then the other lands
were narrated. The names of the bailie and attorney were filled
op by the notary, white the rest of the deed was written in an-
other hand ; and in the docquet it was stated that the deed was
written ( maim aliena.' In recording the sasine, the words of
the above clause contained Within the parenthesis were omitted,
so that sasine appeared to have been given only • diet. vill« el
* terrarum de Eastertown de Lesmurdie,' without any mention of
Inverefaarrachy, Aucbnastank, or Belchirrie. The other parts
of the record* however, were quite correct ; and there was a
clause of dispensation in the charter declaring sasine at Lesmur-
die sufficient.
Under the above charter and sasine, Francis (primus) was en-
rolled as a freeholder of the county of Banff on the 29th of Sep-
tember 1740. He hid two sons,— Francis (secundus) and Wil-
liam i and in October 1770 he executed a disposition in favour
of William « of all and whole the town and lands of Eastertown
* of Lesmurdy, with the parts and pertinents thereof, c6mpre-
' bending therein the mill of Lesmurdy,' &c. ; on which sasine
was taken in the same terms on the 3d of November of that year,
and recorded. Francis (secundus) died without issue, whereby
William became the heir of his father, who also soon thereafter died.
William, without making his right public under the disposition
of 1770, died, leaving a son, afterwards designed Major-General
Francis Stewart King, who was enrolled a freeholder, as appa-
rent heir of his grandfather Francis (primus), but died in ap-
parency, so that the dominium directum still remained in here*
ditate jacente of his grandfather. The complainer, who was the
eldest son of the General, founding on the charter of 19th Fe-
bruary 1747, the sasine thereon, and the retour of the special ser-
vice of the Misses Strachan, then claimed, as apparent heir of
Francis (primus), his great-grandfather, to be enrolled, on occa-
sion of the general election, as a freeholder of the county of Banff.
His claim was objected to on various grounds ; and it having been
rejected by a majority, consisting of Lord Fife and others', he pre-
sented a petition and complaint for warrant of enrolment. Against
this demand various pleas were maintained ; but, in particular,
1. That as the disposition and sasine granted by Alexander
Stewart in 1786 had been confirmed by the Crown charter of
1747, he was thereby divested of all feudal connexion with the
lands ; and as it was only competent for a vassal to execute a re-
signation, and as he had thereby cedsed to be s4,'netalfer Ittf fie*
2b 2
386 CASES DECIDED IN THE
any in his right could thereafter execute a resignation ; and con-
sequently, as the sasine on which the complainer founded was
taken upon the precept contained in the charter of resignation, it
was inept, seeing that the charter had been obtained on a resig-
nation made a non habente potestatem ; and in support of this
objection reliance was placed mainly on the Juridical Styles,
« Heritable Rights/ p. 438, 524.
2. That as the instrument of sasine merely bore that the charter
had been read ' adstantibus,' and not ' testibus adstantibus f and
as it appeared ex facie that part of the instrument was in the hand-
writing of the notary himself, whereas he had stated in the doc-
quet that it was written entirely * manu alienaV it could receive
no faith.
3. That the sasine had not been duly recorded, seeing that the
greater part of the clause of delivery had been omitted ; and be-
sides, as it was necessary to produce a recorded sasine corre-
sponding with the retour as to the lands, and as there was a ma-
nifest discrepancy between the recorded sasine and retour founded
on, the claim of the complainer was essentially defective ; and,
4. That as Francis (primus) had been divested of the lands by
the disposition and sasine granted to his son William, and as the
disposition contained a procuratory of resignation, whereby there
remained only a temporary and defeasible right to the dominium
directum in Francis, it was not competent for the complainer to
claim to be enrolled as his apparent heir, and as such having right
to the lands and superiority.
. To this it was answered,
1. That as the objection to the regularity of the title was not
apparent ex facie, it was not competent to state it in the Court of
Freeholders ; but, independent of this, it was in itself unfounded ;
that the disposition of 1726, as usual, conferred a power to make
up titles both by resignation and confirmation, the one without
prejudice to the other ; that although a title made up in either of
these ways might be effectual, yet there was nothing to prevent a
party from adopting both ob majorem cautelam, and to take ad-
vantage of the one or the other, as he should see proper ; and
that, accordingly, this had been settled both by the decisions of the
Court, and by immemorial practice.
2. That the objections to the sasine were frivolous and un-
founded; that one of them had been repelled in the case of Dickson
v. Syme ; and that a notary, when he read his warrant, did so, not
merely to the witnesses, but to all and sundry.
. 8. That the words which had been- omitted in the record were
unimportant, seeing that the clause was correctly transcribed, so
H
COURT OF SESSION. 387
far as it bore that delivery had been given « villae et terrarum de
* Eastertown de Lesmurdy ;' and as the other lands were compre-
hended in, and formed part of Lesmurdy, and sasine there was de-
clared sufficient for the whole, the omission of them was not of
any importance ; and,
4. That as William was the heir of line of Francis (primus),
as well as his disponee, and as the complainer stood in the same
situation, and he alone was now the heir apparent of Francis, and
could execute the procuratory of resignation, or, if he thought fit,
make up a title by special service, the circumstance of being dis-
ponee could not prevent him claiming in his other character of
heir apparent.
The Lord Ordinary having reported the case, the Court, on
the £7th of January 1827, * repelled the objection to the regular-
* ity of the charter as a charter of resignation, and also repelled
* the objection stated to the complained s right to be enrolled as
* heir apparent of bis great-grandfather Francis Stewart ; and,
* before answer as to the other objections, appointed the com-
* plainer to print the retour and sasine, and the description of the
* lands contained in the charter founded on by him, and allowed
' him to state in a minute whether the lands lie contiguous, or
* otherwise/ He accordingly lodged a minute, in which he stated
that they were contiguous, but that there were now no traces of
the separate lands of Invercharachy, Auchnastank, or Bclcherrie.
On the other hand, this was denied, and it was alleged that they
were distinct and separate tenements, lying in different parishes.
The Court, on resuming consideration of the case, * in respect
' of the omission in the record of the sasine founded ujton by the
* complainer, dismissed the petition and complaint, and found the
* complainer liable to the respondents in the statutory penalty of
' jPSO, with full expenses of process.1
In regard to the objection to the charter of resignation,
Lord Balgray observed : — The objection rests entirely on a mistake
in feudal principle. A charter of resignation is the proper feudal
mode of making up a title. The superior cannot be compelled to
confirm, but he may be obliged to give a charter of resignation. In
going to him, the vassal must have a resignation in his hand. If the
superior choose to confirm, good and well ; but the vassal can never-
theless, if he think fit, insist upon the superior granting a charter of '
resignation. The vassal may have doubts whether the base infeft-
ment is valid, or he may not wish to trust to it alone ; or perhaps he
may be anxious not to rely even on the title made up by resignation,
and may therefore be desirous to have the titles made up in both
ways, the one being always without prejudice of the other ; and it is
988 CASES DECIDED IN THE
certainly a new doctrine to say that they are ineonsiftett and d*>
structive of each other.
Lord President,— I did not think that die objection could be ae*
riously maintained. There is nothing in it.
Lords Craigie and Gillies concurred.
On the point as to the recorded sasine,
Lord Balgray observed :— We can only look at the recorded aaainei
and the question is, Whether it gives the complainer a right to be
enrolled in terms of his claim ? But, on looking at the recorded sa-
sine, it appears that the complainer is only infeft in Easter Leemurdy ;
whereas the retour bears reference not merely to these lands, but to
Inverarachy, Auchnastank, and Belchirrie. It iff impossible, there-
fore, to sustain the claim.
Lord Gillies. — Independently of the circumstance of the sasine not
having been duly recorded, it is a sufficient objection that there is a
discrepancy between it and the retour.
Lord Craigie was rather disposed to repel the objection.
The Lord President thought that the sasine could not be considered
as duly recorded, and therefore that the complainer could not claim
in virtue of it.
Cmpbiner's Authorities.— {\.)-4. Ross, 297 ; Cnnningham, Jan. 3. 1754» (EUfc.
No. 71. M. P.) ; 5. Brown's Sup. 809 ; Kibble, June 16. 1814, (F. C.)— («.)—
Dickson, Feb. 84. laftl, (!Jo. 7. App. Tailzie.)— (4,>-«BeU, T£l. Law, 1».
Respondent** Authorities.— {!.)— Russel on Convey. 337 J Juri4. St. 1 6. » % 433.
524.—<3.)— Gray, Feb. 23. 1790, (8796) ; Bell, EL Law, 262.
F. Stewart, W. S.—Inglis and Weir, W. S*— Agents.
No. 229. c- Smyth, Pursuer.— Scl-Gcn. Hope—W. BeU.
A. Nibbet, Defender. — Jameson — Moir.
Attorney License— Stat. 25. Geo. III. e. 80.— 7- Geo. IF. o. 44.— The executor of
a writer to the signet having obtained decree in absence for certain business ac-
counts, and a reduction having been brought, in the course of which it ww al-
leged that the writer had not taken out his attorney license during the currency
of the accounts, whereby he had no right to recover payment— Held competent
for the executor, pending the process, to pay the arrears of duties under the
above statute, 7* Geo. IV. and thereby remove the objection.
Feb. 20. 1827- Nisbet, as trust-disponee and executor of the late Joseph Cau-
1st Division. ym> writer to the signet, obtained in absence two decrees against
Lord Medwyn. Smyth, the one in 1818, and the other in 18583, fpr payment of
s- certain business accounts as due to Cauvin, bis agent in actions
which had depended in Court. Of these degrees Swtyth brought
an action of reduction, alleging that the aeoounta ware not due,
and at all events were prescribed. A eonclesceodenee having
been ordered in reference to his ground* of reduction, lie there
COURT OF SESSION. 880
stated that, during the currency of the accounts, Cauvin had
failed to take out hi* attorney license ; and he pleaded, that, in
terms of the 26th Geo. III. c» 80, he was incapacitated from
recovering payment of them, and therefore the decrees were
nulL Various answers were made to this objection ; but, after the
record was closed, the defender, availing himself of the provisions
of the statute 7th Geo. IV. c 44, (which was passed pending the
action,) paid the arrears due at the Scamp-office, and then con-
tended that the objection was entirely obviated.
To this it was answered,
1. That the statute could not have a retrospective effect, so as
to deprive a party of the benefit of a plea which he had pleaded.
SL That it was only intended to operate in favour of parties
who should in future raise actions, and not in favour of those who
bad done so, and obtained decrees ; and,
8. That as it was not alleged in the closed record that payment
of the arrears had been made, and no plea in law was founded on
the statute, no regard could be paid to the circumstance.
The Lord Ordinary, in the circumstances, repelled the plea of
prescription* and found, ' That as it has been found that the
omission to take out attorney certificates is a sufficient ground
of suspension, (Robertson against Strachan, 29th June 18526,)
it must also be a good ground of reduction ; but in respect that
the omission of the late Mr. Cauvin for the year 1814 has been
supplied by his executor paying for a certificate in his name,
finds that, in terms of the recent statute 7th Geo. IV. c. 44, this
sufficiently obviates the objection* and renders it unnecessary to
decide whether such a ground of reduction would have been
competent under this Summons, which does not state this among
the reasons of reduction."
Smyth reclaimed, but the Court adhered.
Loan PassiVEif T*-tThe objection is one of the nature of a personal
bar against pursuing, and H may be doubted whether it is available
(being a sort of penalty) against the executor and disponee ; but at
all events it baa been removed.
Loan Balgray^— The late statute was intended to indemnify all wbo
complied with its provisions, which has been here done, so that the
objection is entirely swept away.
Lord Craigie was of the same opinion, and that it ought to receive
the most favourable construction.
Lord Gillies concurred.
D. Maclean, W. &— Carneoy and Shepherd, W. S*— Agents.
zie.
M'K.
890 CASES DECIDED IN THE
No. 230. A. Buchanan, Collector of Poor's Rates for the City of Glasgow,
Pursuer and Respondent.— Je^rtfy — ATFarlan.
C. S. Parker, Defender and Advocator.— D. cff. Moncreiff—
Ivory.
Poor.— A merchant burgess, partner of a company carrying on business in a count-
ing-house within burgh, at which he gives his personal attendance daily for the
greater part of the year, but having his dwelling-house with his family in a
neighbouring parish, whew he is assessed as a householder for the support of the
poor, — held to be an inhabitant of the burgh to the effect of bein£ liable in his
proportion of the assessment for the poor.
Feb. 21. 1827. Paekeb, the defender, is a partner of an extensive mercantile
2d Division, house, carrying on business at Liverpool, Demarara, and Glas»
Lord Macken- gow, at each of which places a branch is situated, under the
management of one or more of the partners. At Glasgow, the
company under the firm of M'lnroy, Parker, and Company, are
possessed of a counting-house situated within the city, where the
business is carried on with the assistance of one or two clerks,
who form the sole extent of the establishment there, the com-
pany having no property of any kind locally situated in Glas-
gow, except the counting-house. This branch of the concern
is managed by two of the partners, Mr. M'Inroy, who resides
within the city of Glasgow, and the defender Mr. Parker, who
has his dwelling-house at a little distance in the Barony parish,
where he rents a farm of i?600 a year, which he personally cul-
tivates and manages. At this house, in the Barony parish, he
resides with his family for about seven months in the year. During
this period he personally attends at the counting-house in Glasgow,
five days in each week, for two or three hours a day, but eating
and sleeping with his family in the Barony parish, where he spends
the rest of the day in the superintendence of his farm. For the
remainder of the year, in the summer months, he resides with his
family at a small property belonging to him at Fairley on the
coast of Ayrshire ; and during this time he usually comes to town
once a fortnight, when he resides for two days together or so at
his house in the Barony parish, giving his personal attendance at
the counting-house for about three or four hours; and in the
course of the year he also has occasion to visit Liverpool on the
business of the company, at least three times each year, for longer
or shorter periods, as circumstances may require. Parker is
further a burgess of Glasgow, — pays stent as a trader, — has been a
member of the Town Council, and acted as an assessor for the
poor's rates, in which character he concurred in imposing am
assessment on himself for the poor of the city. He is also assessed
COURT OF SESSION. 891
for support of the poor in the Barony parish, which contains up-
wards of 50,000 inhabitants; and the assessment there is laid
on him as one of the class of householders or inhabitants, accord-
ing to the rule adopted in that parish for apportioning the half
cf the assessment falling on that class, viz. in proportion to the
real rent of the heritable property within the parish occupied by
each individual- In Glasgow the assessment had originally been
laid on the firm of M'Inrqy and Parker, in respect of the funds
estimated to form the stock of the trade there carried on ; but, in
1817, at the request of the partners, this mode was discontinued,
and these two partners were separately assessed on the estimated
amount of the stock belonging to each in the trade carried on at
Glasgow. Parker's stock in trade was then estimated at «£30,000 ;
but on his complaint that this was too high an estimate, it was in the
following year reduced to JP20,000. In 1819, the assessors having
refused to reduce the estimated amount of his stock further, he was
again rated at JP£0,000, and assessed accordingly in the sum of
i?30 : 16 : 8, being a certain per centage on that amount. Having,
however, refused to pay this sum, on the ground that he was not
liable at all, as not being an inhabitant of Glasgow under the
meaning of the statutes authorizing an assessment for the poor,
an action was raised against him by Buchanan, the collector of
poor's rates, before the Magistrates of Glasgow, the citation to
which was left for him at the counting-house of M'Inroy, Parker,
and Company. In defence against this action, Parker contended
that he was not subject to the jurisdiction of the Magistrates.
The Magistrates, however, sustained their jurisdiction, where-
upon he brought an advocation, in which the Lord Ordinary sus-
tained the defences, and assoilzied him.
Against the interlocutor of the Lord Ordinary the collector gave
in a representation ; and he also raised an action in this Court, con-
cluding for payment of the assessment for 1819, and of the sums
imposed since that year. To this action it was pleaded in defence by
Parker, * That having no residence, d welling, or domicile, either by
' himself, his family, or servants within the city,' he was not liable
in payment of poor's rates for the city. The ordinary action having
been conjoined with the previous process of advocation, the Lord
Ordinary adhered to the interlocutor formerly pronounced in the
advocation, and in the ordinary action sustained the defences, and
assoilzied. The collector then reclaimed to the Second Division,
who ordered Cases for the opinion of the whole Court ; and hoc
statu recalled the interlocutor of the Lord Ordinary, that it might
not in the mean time operate as a precedent in other cases, so as
to prevent the sum necessary for the support of the poor being
levied as formerly, till the question should be decided. When the
908 CASES DECIDED IN THE
cause lame before the whole Court, and was about to be opened
lor the pursuer by the then Dean of Faculty, (now Lord Core-
house,) several of the Judges expressed a wish that an investi-
gation should be made regarding certain allegations in the papers
as to the practice of the royal burghs in Scotland in regard
to assessment for the poor ; an order was accordingly made for
a return by the town clerks of the several burghs, and by Pro-
fessor Davidson as to Glasgow, stating the manner of imposing
the assesameht, ' and in particular whether it is levied from rner-
* chants and tradesmen carrying on trade within the burgh, at-
* tending personally at the counting-house/ or other place of
* business, but having their families and dwelling-houses in an*
< other parish* or beyond the limits of the burgh.1 From the re*
turns made, it appeared that there were only sixteen burghs in
which any assessment was levied for the poor, and that scarcely
any two of these followed the same rule in imposing it, although
the majority concurred in making no distinction between those
traders who had both their house and place of business, and those
who had their place of business only within the burgh. As lo Glas-
gow, however, it was not expressly denied, that for many years the
mode of assessment complained of had been followed ; — that, in
1784, doubts- having been started on the subject, the opinion of
the late Sir Hay Campbell was taken, and his opinion being, that per-
sons in the situation of the defender were, liable, no further ob-
jection was made till 1798, when two persons in such situation*
had refused to pay their assessments, and an interlocutor of a
Lord Ordinary had been pronounced, finding them liable ;— that
in this interlocutor they had acquiesced, and that the same mode
of assessment had been since continued without objection* Under
these circumstances, the cause was put out for hearing before the
whole Court* '
Jeffrey 9 for the pursuer, after detailing the facts of the
There are two questions before the Court. The one regard-
ing jurisdiction is the proper question in the advocation, and
the consideration of it may be postponed to that of the main
question of the liability of parties in the defender's situation in
payment of poor's rates, which involves the former ; since, if such
persons be liable to be assessed, it is difficult to see how they
can be liberated from the jurisdiction of the Magistrates as to
that matter.
The plea of the defender on the principal point is very simple
and direct; viz* That by the act 1579, c. 74, the assessment is
leviable from inhabitants, while he is not an inhabitant, and that
therefore he is not liable in the burden of maintaining the poor,—
COURT OF SESSION. 098
although he be a burgess and a trader in the city,— has been a
bailie and an assessor,— and may have contributed to create the
poor, to whose support he refuses to contribute This is a ques-
tion of construction, in which it is of importance to consider,
1st, The general principle as to the construction of statutes, such
sa those for support of the poor ; 3d, How similar expressions in
other acts of Parliament have been construed by practice and de-
cisions ; and, 8d, How far general consuetude and decisions have
settled the construction of ' inhabitants,9 in reference to the ques-
tion here at issue.
1. The word < inhabitant,' and the analogous terms indweller,
residenter, fee., are flexible and construable terms, which may
mean different things in reference to the matter in regard to
which they are used ; and, to ascertain the meaning in any par*
ticuiar statute, we must look to what was the purport of the
act. There are two principles which ought to regulate the con*
stmction of statutes; the one is, that they must be construed so
as to carry most completely into effect the object in view, and
so as to avoid the mischief any other interpretation would allow.
Now, the object of the statute under consideration was to assess
generally the community of every particular burgh for relief of
its poor ; and, within the principle alluded to, a person in the cir-
cumstances of the defender is a member of the community. On
the other hand, the mischief which' would result from another in*
terpretation would be very great, by throwing the whole burden
of supporting the poor on those who cannot afford to live out of
the burgh, and allowing those to escape who are most able to bear
it ; and it is incorrect to say, that considerations of this kind are
foreign to the question of law, for every thing tending to show the
object of the statute is a legitimate ground of argument. It is an*
other principle in regard to the construction of statutes, that all re*
medial statutes must be liberally interpreted; and in support of
these principles we have the authority of Lord Coke, who says that
statutes for behoof of the poor must receive a favourable construe*
tion ; and also the various authorities quoted in the pursuer's Case,
(p. 24, fee) as to the construction of ' inhabitants9 and householders
in the English Courts, and in particular the opinion of C. J. Eyre.
Construing on these principles the statute 1579, c. 74, which lays
the burden ' on the haill inhabitants within the parochin, accord-
' ing to the estimation pf their substance, without exception of
' persons,' it is clear that by ' inhabitants* are meant persons who
within the parish increase their substance; In England the
possession of a dwelling-house is certainly necessary, but occu-
pancy by the party himself is not required to render him an in*
habitant under similar statutes, on the ground that a strict judai-
894 CASES DECIDED IN THE
cal interpretation is not to be applied, when the purport of the
statute shows that another was intended. We do not need, how- .
ever, to go to a foreign law in support of our plea ; for,
2. There is sufficient evidence in support of it, in the construc-
tion, by practice, and by decisions, of analogous statutes in our
own country, by which the constructive residence occurring here
has been held to bring a person under the term ' inhabitant/
Thus, in regard to the holding of offices within burgh, the act
1585, c. 26, ordains that none shall be elected provosts, bailies, or
aldermen, ' but they that are honest and substantious burgesses,
* merchandes, and indwelkrs of the said burgh? an enactment
repeated to the same effect by 1609, c. 8, which declares that
none shall be capable of being elected, ' but marchants and actual
* traffickers, inhabiting xvithin the saids burghs allenarHe, and na
' uthers ;' while, although it is settled that these acts are not in
desuetude, except in regard to provosts, they have been construed
(as in the case of Lawrie v. Magistrates of Edinburgh) so as to
hold a trader or trafficker resident, merely because he transacts
business within, though having his dwelling-house without the
burgh ; and so the defender here was himself a bailie in Glas-
gow in virtue of that very constructive residence, and he must
therefore submit to the maxim, ubi honos ibi onus.
In like manner, by a series of statutes, the privilege of foreign
trade is confined to 'Jreemen inhabitants'* and ' burgesses indiveU-
« ers? These statutes cannot be considered in desuetude, having
been founded on the case of Kirkwall, and others of a similar na-
ture ; and yet ifi practice they are construed to admit persons to
carry on trade, not having their dwelling-house within the burgh,
if they be burgesses, and have their counting-house within the
burgh. The defender designs himself a c merchant in Glasgow1 —
he is confessedly a burgess — and by what title does he carry on the
business of a merchant, unless it be as an inhabitant P The same
principle which has led to a reasonable interpretation of the sta-
tutes in reference to trade, should lead to the same interpretation
here. Persons in the situation of the defender are undoubtedly
inhabitants quoad the trade. It may be said, he might carry it
on as a sleeping partner of a company, though not a burgess, and
never within the burgh personally. No doubt he might do so,
but only provided one of the partners were a freeman, and, con-
structively at least, an inhabitant ; for he could not carry on trade
by means of another person, as was held in Barbers of Edinburgh,
Dec. 1. 1738, (1925.) One of the partners must be an inhabitant;
but he is construed to be an inhabitant as to trade, who personally
carries it on in a place of business within the burgh.
There is a third class of statutes in which a similar construe-
: COURT OF SESSION. 90$
tion has been given to the term ' inhabitants." The burdens of
watching and warding, and paying stent, (which is admitted to
be paid by the defender here,) are, by. the act 1592, c. 155, laid
on the ' inftabUante of burghs, exerceand onie manner of traf-
' fique, merchandise, or having change within the same ;' and
under this fell the case reported by Dirleton, A. v. B. Jan. 16.
1687 (1896,) where it was found that a burgess, though not in-
cola, if he trade, may be stented. And it is to be observed that
the act of Convention, 4th August 1665, laying the cess on inha-
bitants of burghs, was in subsistence in the time of Dirleton, who,
in the case above mentioned, alludes to all his Majesty's taxa-
tions; nor is it unimportant also to observe,, that in the case of
Wilson v. Magistrates of Glasgow, June 15. 1759 (1900,) bur-
gesses were found liable in payment of cess, * in respect of their
' trade/ — thus not requiring actual inhabitancy.
The next act of this class is that of 1597, c. 279, which sets
forth, that ' forasmeikle as there is diverse inhabitants that dwells
* and remains within the free burghs with their families, and Are
' of reasonable substance, — as alswa hes rents and livings within
' the samin burrows, zit refusis to contribute for the enterteine-
c ment of the pure, watching and warding within burgh, with the
* rest of their nichtboures, or to bear part of sik uther dewties
' as concerns his Majestie's service, thereby living at liberty,
' neither knawand the magistrates in kirk nor policy ;' and or-
dains ' that all. sik as hes their residence and duelling within the
' saids burrows be their families, and may spend ane hundred
* punds of yeirly rent within the same, or stented be the discreet
* nichtboures to be worth twa thousan4 markes in free guddes,
' sail be subject to be burdened with the rest of the inhabitants
' for the advancement of the glory of God, his Majestie's service,
4 and the well of the burgh quhair they dwell/ This act is im-
portant, as proving that the burden of maintaining the poor is
included among the ordinary burgal taxations and burdens, show-
ing that the same principles were understood by the Legislature
to apply to it, and that the same classes of men were equally liable
in them all. But it is quoted as an authority on the other side,
to establish that ' residence and dwelling by their families' is re-
quisite to render persons liable as inhabitants ; if, however, other
statutes prove that parties merely exercising trade are liable in
stents, Sec. it is clear that this act could only affect those not
exercising trade, and could not touch the previous liability of
those exercising trade within the burgh.
This reduces the defender to the act 1579, c. 74, where the
word ' inhabitants' is alone used. But, under the authorities al-
Ldy cited, it is clear that the word inhabitants includes persons
096 CASES DECIDED IN THE
who are burgesses, and who cany on trade personally in the burgh,
though not actually dwelling within it Altogether .independently
of these authorities, however, it is no stretch to say, that a man
is an inhabitant, in the narrowest meaning of the word, who passes
the greatest and most important part of his existence in the burgh,
—who makes his money there, and is usually present there. In
popular language, such a man is an inhabitant But when, in ad-
dition, we see him, as the defender here, holding offices — paying
stent— carrying on trade— all solely in virtue of being held an
inhabitant,— it would be absurd to maintain on a judaical con-
struction of the word that he is not so. The defender, in dealing
with these circumstances of his situation, takes the case in pieces,
and says of each circumstance separately, that U will not make an
inhabitant ; and he therefore concludes that all of them together
will not do it But he is met by the maxim, quae singula non va-
lent, juncta valent There is one view, however, in which any
difficulty might have been got over ;— the company Itself might
have been taxed as a person, for in those burghs where real
property is assessed, companies are assessed as such for real pro-
perty belonging to the company. This would exclude the objec-
tion as to the inhabitancy of individual partners, since the com-
pany must always inhabit where it trades; and if partners may be
taxed through the company, where is the objection to coming on
each for his share of the profits separately ? Prior to 1816 the
house of the defender was assessed as a company, and many
companies are still so assessed in Glasgow ;— which leads to die
next branch of the argument—
8. How far general consuetude and decisions have confirmed the
construction of the word inhabitant in reference to the poor, odd.
tended for by the pursuer. As to the returns from the other
burghs, it is unnecessary to detain die Court by going through
them, further than to observe, that out of the sixteen burghs where
assessments are levied, nine or ten are decidedly in our faf*oor,
and the others only doubtful ; while the defender'* construction
is not supported by a single instance of consuetude. In Glasgow
the practice of assessing traders not having their dwelling-house
within the burgh has been uniform, and has been sanctioned in
the two cases of Allan and Buchanan, which are parallel to this.
In the former, the judgment of the Lord Ordinary was acqineseed
in ; and as to the latter, though Buchanan had a dwelling-house
in Glasgow, it is still equally against the defender's argument,
which goes to this — that a man can only have one domicile at
which- he may be assessed. Now, Buchanan was undoubtedly
domiciled in Dumbartonshire ; and if this principle be correct,
he could not have been assessed in Glasgow. The defender
COURT t)P SESSION. 997
founds mi the one of Manaon v. Cochran. The reservation, how*
ever, in that ease saves the pursuer's plea ; but further, that is a
decision de tecenti by one Division, and may properly be recon-
sidered in a cause before the whole Court, especially as it does
appear irreconcilable to the statutes and to practice, having sub-
jected a party to assessment in three characters, — which is quite
irrecoocileable with the act 1609, (that always followed as to land-
ward parishes,) and with the decision in the case of Cargill.
It is argued by the defender, that being domiciled in the Barony
parish, he is liable to be assessed there on his whole means and sub-
stance, and that he therefore cannot be assessed on the same pro-
perty in Glasgow. Bat the fact is, that he is not assessed in the
Barony parish on his whole means and substance, but only in re-
lief of the heritor in one half of the whole assessment laid on the
land under the act 1609, which h the ruling act as to landward
parishes ; neither is he assessed in Glasgow on his whole means,
but only on his share of the mercantile concern which be carries
on in Glasgow ; and a double domicile as to this matter is estab-
lished all over the kingdom, and sanctioned by acts of Parliament,
as by the act 1097, c. 980, by which it is provided that inha^
fattants of burghs having livings to landward shall only be stented
in the burgh according to their livings within burgh,— being
stented on their livings to landward along with the barons, &c. of
the shires where they lie.
Then, as to the remaining question of jurisdiction. If we are
right on the merits, we cannot well be wrong here. If this be
a burgal assessment, and the defender may be a bailie, it is diffi-
cult to see why he should not be bound to appear before the
court of which he is capable of being a member. But, independ-
ent of this, burgal custom may authorize this, according to various
decisions which will be found in the Dictionary, Vol. I. voce Con-
suetude ; and these are not affected by the two founded on by the
defender, not being relative to burgal customs.
2>. qfF. Moncreifffar the defender.— Any question relating to
the poor laws is of great importance; but it is of chief importance
that the acts of Parliament, which alone warrant an assessment,
should be implicitly followed, without regard to particular usages.
The measure of the statute must be the rule. It is no doubt
true that, since the date of the statute 1579, a great change has
taken place in the state of the population of this country ; but
the conclusion to be drawn from this is, — not that we should put a
different construction on the act now, from what must have been
given to it when it was passed,— but that we ought rather to look
to- the state .of the times when the statute was enacted, in order to
898 * CASES DECIDED IN THE
put the true interpretation upon it. Mr. Jeffrey's argument,
therefore, as to the mischiefs which might arise from a construc-
tion different from that for which he contends, only goes to this
-—that there may be an expediency for a new act of the Legisla-
ture, applicable to the altered circumstances of the country.
Mr. Jeffrey has treated this case as a special one, to be deter-
mined on a combination of all the circumstances attending the
pursuer's situation, as having been an assessor, &c. If this were
the true question to be argued, I should not be afraid to plead
the specialties, as in many respects favourable to the defender ;
but I cannot adopt this method, which would lead to resolving
such questions into special cases in every instance. The leading
fact is, that the defender does not reside in the city of Glasgow,
but in the Barony parish, where he has a large farm, and where,
being domiciled, all the legal consequences in law have followed ;
and his having been a bailie or assessor does not enter much into the
question, because such circumstances are merely incidental to his
situation of inhabitant, if that exist; but cannot create the situation,
if it does not otherwise exist. Then the question is, Whether a
party so situated is liable to be assessed for the poor ? There is no
question as to an assessment on real property, nor as to the com-
petency of assessing the company as a person ; and any attempt to
do so would bring out the impossibility of applying the pursuer's
principle. The company here consists of seven partners ; but it is
not attempted to assess any of them except the defender and Mr.
MTnroy, though all of them, as much as they, trade within the
city of Glasgow ; yet to assess the company would be the same
as to assess these individuals, the competency of which the pur-
suer expressly disclaims. It is never attempted, therefore, to as-
sess individuals, merely on the ground of their carrying on trade
within the burgh ; and this is a powerful argument to show that
it is equally incompetent to assess the defender, whom alone of all
the non-resident partners they do assess. And on what do they
assess him ? — Not on his means and substance in terms of the sta-
tute,— but on ,££0,000, which they take as his share of the capi-
tal belonging to a company carrying on trade in different parts of
the world, corresponding to what may effeir to that part of the
business carried on at Glasgow ; while, at the same instant, he is
assessed in the Barony parish on his whole means and substance,
being the only manner in which he can legally be assessed, what-
ever media may be adopted as the criterion for determining the
extent of his means, compared with others. To see if this be war-
ranted, we must go to the statutes ; and I have no reason to dis-
pute the general principle laid dowu by Mr. Jeffrey, that sta-
COURT OF SESSION. 899
tutes must be construed in favour of their object* But then the
question is, What was the object of the statute under consider*
ation ? When Lord Coke says that statutes for the support of the
poor are to be favourably construed, he alludes only to questions
arising between the poor and the public* but not to questions be*
tween individuals, — the poor being provided for, — whether one
person is to pay twice for their support. Whether we look to law
or equity, if explicit words are used, not doubtful at the time of
passing a statute, they cannot be strained, from views of expe-
diency, according as future events may turn out.
It is said that the construction of analogous statutes fixes the
meaning of inhabitants here. These statutes speak of indwell-
ers, residenters, &c, which, it is said, have been construed to
mean persons not actually residing. Even if this were the fact,
it would not necessarily decide the present case, as these fcare
cases of privilege, not of burden, and so may admit of a more
favourable construction. But it is not truly the fact that such
words have been construed to mean persons not actually re-
ading. It is no doubt true, that as to offices within burgh, the
Court has gone a great way to hold a party entitled to enjoy an
office from merely having a place of business, or even from having a
room in the burgh which he never enters, or from being possessed
of heritage in the burgh. But this is founded on the weight given
to usage in forming the set of each particular burgh ; and if car-
ried into the present case, it would go against the law, even as
admitted by the pursuer himself. Then, as to the privileges of
trade, the case of the pursuer is not made out either on the sta-
tutes or the decisions. The act 1592, c. 154, gives the privilege
of trade to ' burgesses/ without any other limitation ; and 1672,
c. 5, in like manner gives the privilege to * freemen of royal
* burghs.' The material thing in all the statutes of this class
is the being ' burgesses,9 — and * indwelle^ is used loosely to
signify those not having the privilege of burgesses. It is strange
that the other party should have founded on the case of the Bar-
bers of Edinburgh, Dec. 1. 1788, which is against his own argu-
ment,—it having been there found that a non-residing burgess.
could not carry on trade ; while, if their argument were good as
to the construction of the statutes, the party there must have been
held to be an inhabitant, in respect of bis trafficking and having a
shop within burgh. As to watching and warding also, by the act
1592, c. 155, the emphasis is on the ' exerceand traffique,' and ' hav-
* ing change'* within burgh. A case reported by Dirleton was how-
ever quoted, to show that a person is to be considered an inhabitant,
though he do not reside ; but this is not the correct inference from
vol,, v. 2 c
400
CASES DECIDED IN THE
that ease. It was there found that a burgess, if he trade, may be'
stented, « though not incola ;" — not that he is an inhabitant if he
trade, but that although not an inhabitant, still, if he trade, he
may be stented* This is the true principle of liability for these
stents, and the same is the rule as to cess. The being burgesses
and traffickers is the leading quality in all the statutes subjecting
to liability, and the being inhabitants is merely added as an ad-
junct. The essential point is the being a burgess and trader,
in respect of which the burden is imposed. A burgess trading,
being expressly within these statutes, might be liable qua such, and
so stented, though not an inhabitant ; but where the burden, as
in the act 1579, is laid on inhabitants in respect of inhabitancy
alone, and where no other word is used, the same construction
will not follow. All that was decided by the case of Wilson v.
Magistrates of Glasgow, quoted by Mr. Jeffrey, was, that bur-
gesses are liable «to be taxed on their trade ; there was no-
thing regarding inhabitancy there in question,— it related only to
trade*
But these analogous cases are inapplicable on more general
grounds. Assessment for the poor has a quality in it belonging to
none of the others referred to. If the statutes regarding the poor
are to have any effect at all, every person is liable to assessment,
wherever he dwells, on his whole means and substance; and
none of the coses referred to of local assessments, in particular
places to which the party would not be liable elsewhere, can apply
to this- On the plain words of the statute it is clear, that when
a man is assessed as an inhabitant, he must be assessed on his
whole means and substance. The fundamental act 1579, c. 74,
is still in force, and it ordains the Magistrates of burghs and
Justices in parishes to landward ' to tax and stent the haill inhabit-
* ants within the parpchin, according to the estimation of their sub-
' stance/ Here it is to be observed, 1. That the term ' inhabitant,*
as used in this statute, is strictly taxative, and is connected with
no other term; and the other clauses show that nothing but
actual residence could be contemplated, as parties refusing to
contribute to the support of the poor are directed to be * called*
before the Magistrates within burgh, and the Justices in landward
parishes; so that those persons only could be intended who were
liable to be called before their respective jurisdictions ; and the
paupers are allowed to have licenses to gather alms of the parish-
ioners c at their awin houses.9 8. That landward parishes and
burghs are to be assessed in the same manner. The enactment
is loose as to the criterion for determining the substance of the in-
. habitants ; but, in both sorts of parishes, the assessment is to be
COURT OF SESSION. 401
made according to the estimation of their * substance ;' and this
also is a taxative term qualified by nothing; it is not the substance
' within the parish/ but is general, comprehending the whole sub-
stance. Now, does this statute admit of doubt or ambiguity ?
There is nothing flexible in it, and it is conclusive on this ques-
tion; for the act 1668 relates only to the case of providing for
vagabonds, and has gone into desuetude, although, by the proclam-
ation 169$, the rule of that statute, as ttf dividing the assessment in
two parts in landward parishes, has obtained a broader foundation
than mere usage. But the act 1579 is the leading act, and it lays
the assessment on ' inhabitants/ and on ' substance/ Nor does
the act 1597, c. 279, weaken the other, as it was intended to limit
the liability of certain individuals; and it assumes in its narrative
that the meaning of the act 1579 was to include under inhabitants,
only persons actually residing within the parish. The words are,
* For as meikle as there is diverse inhabitants that dwells and re-
8 mains within the tree burrowes with their families, && yet re*
* fuses to contribute for the enterteinement of the poire,'— rshowing
that the Legislature held those only to be inhabitants under the
act 1579, who resided with their families.
The* statute 166S, as already observed, relates only to vaga~
bonds; but it also, as to the assessment for the purposes of the act
laid on the tenants and possessors, directs that it shall be laid on
according to their « means and substance,9 without qualification.
Then, as to the proclamation 1692) it lays the burden on the
( householders.' Now, assessments must either be regulated by
the act 1579 exclusively, or they must rest on the act 166S and
the proclamation ; but, taking either of them, the result will be the
same. By the act 157% the assessment must be laid on inhabit-
ants, according to their substance, without qualification. By the
proclamation, it must be laid one half on the householders; and
as the act 1663 is referred to in this provision, it must be laid on,
according to their means and substance, as there directed, and as*
sessmeirt can be imposed by no other rule. From this it neces-
sarily follows that there is no warrant for an assessment on the
inhabitants on any thing but their whole means and substance.
The pursuer, however, does not pretend that the assessment in
Glasgow is laid on according to this rule ; he assesses only on the
trade carried on in Glasgow, which may be a small branch of the
trade carried on by the individual, or may be a losing branch erf
his trade, though he may have ample means arising out of ether
branches. This goes deeply to the principle in dispute, as ther
pursuer mast find a legal warrant to assess on a part of a man's
means and substance; but there is no such warrant, and the Ton
2c S
402 CASES DECIDED JN THE
«
/
I
cessity of splitting a man's means and substance in assessing ae»
cording to the pursuer's rule shows its unsoundness.
In considering the particular situation of the defender, I do
not wish to disjoin the circumstances founded on by the pursuer,
as making him an inhabitant ; but will first take one circumstance,
and then add the others, and see if that will make inhabitancy.
The pursuer admits that trading and having a counting-house
alone will not do ; and if trading be out of the case, that throws
out also all the arguments deduced from payment of cess, &c.
which depend on trading. Then it is said that personal attend-
ance at the counting-house makes out the inhabitancy. But
what does the pursuer say to the case of a managing clerk living
in the Barony parish ? His business is at the counting-house,—
his livelihood is made there,— he is there personally from morn-
ing to night ; and yet the pursuer does not pretend that a person
in such circumstances is liable to be assessed. Then take a farmer
or a gardener, who brings his stock into the city to market every
day, and remains till he sells it, or a workman who labours in the
city all day. None of these are liable, so that it cannot be personal
presence which makes the inhabitancy. The defender here might
carry on his whole business without going personally to the count-
ing-house ; and can the incidental circumstance of going there
make him an inhabitant, when confessedly the substantial matter
of trading will not have this effect? The inevitable conclusion
from all this is strengthened by combining it with the fact, that
the pursuer is assessed in another parish on his whole means and
substance. It was said that the assessment in landward parishes
is not on the whole means and substance. If it be not, then on
what is it ? There is no authority for laying an assessment on any
thing else. It is no doubt true, that in the Barony parish the
half leviable from the inhabitants or householders is laid on in
proportion to the rent of the premises occupied by them ; but the
rent is merely a convenient rule for getting at an approximation
to the proportionate means and substance of the several inhabit-
ants, adopted to avoid the annoyance of an actual estimate, and
as giving a fair enough rule for determining the proportion of
each man's means and substance. Still it is merely a criterion, and
is so recognised in the case of Dreghorn v. Lawrie ; and accord-
ingly (as found in the cases of Gammell, and of Cochrane v. Man-
son) a direct estimate may at any time be resorted to in landward
parishes, instead of such a criterion ; and even the act 1663, ap-
pealed to by the pursuer, demonstrates this, as it does not lay the
assessment on the tenants by their rents, but according to their
meant and substance. The defender is therefore assessed in the
COURT OF SESSION. 403
Barony parish, a* the place of his domicile, on his whole means
and substance, and it is therefore incompetent to assess him again
in the city on part of the same means and substance. It is proper,
however, to notice one case which does create a difficulty, viz.
that of an apparently double domicile. In most of such cases,
however, though it may be difficult, there will always be some
circumstances to show which is the true domicile. But here we
are not under the necessity of solving a case of double domicile.
This is a case of single domicile, and it is an attempt to make a
party liable somewhere else than at his domicile, and on some
other ground.
There is one plain criterion of inhabitancy in regard to the
poor laws. To acquire a right to be relieved, the pauper must
have a residence in the parish. Now, were the defender reduced
to poverty, it is clear he could not be put on the poor's roll in
Glasgow, not being there domiciled ; and unless he be entitled to
draw benefit from the assessment, he cannot be liable in payment
of it.
Another criterion is, Whether the party be subject to the juris-
diction of the magistrates ; for, as the act of Parliament provides
that parties refusing to pay their assessment shall be ' called1
before the magistrates of the respective parishes, they can only be
liable to assessment in such places where they are liable to the ju-
risdiction of the magistrates having authority there. Now it is clear,
under the authority of the cases of Fraser u. Lancaster, Jan. 14.
1795, and Sharpe, Fairlie, and Co. Feb. 21. 1882, that the Magis-
trates of Glasgow have no jurisdiction over the defender. It is
said that these cases did not relate to burgal matters ; but there is
no statute fixing a different rule as to burgal or any other mat-
ters ; and if no citation could be given to the defender to appear
before the magistrates, it goes very deep into the argument on
the merits, as the statute assumes that those liable in assessment
may be cited before the magistrates.
The only other matter which remains for consideration, is the
alleged practice of the different burghs. Supposing that it was
coincident in all, it may be doubted whether that would alter
an act of Parliament. But as they all disagree with each other,
and with the admitted law on the subject, it is impossible to at-
tach any weight to such usage, which, besides, only goes a short
way back, and in many cases only subsists in regard to occasional
assessments. Even as to Glasgow, the usage does not go very
far back ; and it is plain that it has been very various, as several
schemes are mentioned by Mr. Burns in his Work on the Poor,
having been adopted there. Nor is there any decision on the
404 CASES DECIDED IN THE
subject infavour of ihepumifer. The ewe of Allan regarded a small
sum, and was only an interlocutor of the Lord Ordinary. That
of Buchanan was decided expressly on the grounds that the party
had there a dwelling-house, which was bis proper dwelling-place.
Glasgow was his original domicile : be still kept an establishment
there, and resided there at limes, and be was cited at his dwell-
ing-place there ; and if be was assessed at all in the country, it
was only as an heritor. The case of Cargill has no reference,
except in so far as the Court interfered there to prevent the heri-
tors deviating from the statutes ; and it is trusted that, in the pre-
sent case, the assessors of Glasgow will in like manner be kept
within these enactments.
On this argument the Court, in conformity with the opinion of
the majority of the Judges present, altered the interlocutor of the
Lord Ordinary, and decerned ' in terms of the conclusions in the
* supplementary action ;' but found it * unnecessary to determine
* as to the objection to the citation in the original action.7
Lord President. — My opinion has varied more than once as to this
case, the facts of which are of the following nature. Mr. Parker is cer-
tainly a merchant in Glasgow, — a partner with others, having a count-
ing-house there common to the whole firm. Mr. Parker, however, has
no dwelling-house within the city, but has a house and (arm in the Ba-
rony parish, where his family resides, and where he eats and deep* ;
but be attends the counting-house every day. In summer be re-
sides in Ayrshire, and visits Glasgow occasionally ; — he is a burgess
of Glasgow,— a member of the town-council^— has been assessor and
bailie. The poor's rates were once levied on the company, but, at the
partners' request were transferred to the individuals, and Mr. Parker
paid in both capacities, and applied for deduction ; but, after a num-
ber of years, he now refuses, and pleads that he is not liable, as not
being an inhabitant. At first sight it must' strike every one that it
is not a very gracious plea, after paying so long, and having assessed
others. At the same time, we are not to judge whether it is gra-
cious or handsome, but whether it is legal ; and I confess, after all
the attention in my power, and contrary to my original opinion and
inclination, and the equity of the case, I have come to be of opinion
that Mr. Parker is not liable. There are three questions to be con-
sidered in relation to assessments for the poor : 1. Who have authority
to lay on the assessment ? 2. Who are liable to pay ? and, S. In what
manner, and on what principle, is the sum to be apportioned on thoae
who are liable? On the first point there is no complaint. The
proper authority is vested in the magistrates with * sik as they ahaU
< call to them to that effect.' 2. If Mr. Parker be liable, be doe*
. not osmplain of the amount, but that he is not liable; and thai
is the point to be decided. A good deal of doubt and confusion
COURT OF SESSION. 405
•9 to the poort law* of Scotland has arisen Iron the acta of Parlia-
ment not taking into consideration the change of circumstances in
the country. But as it has been said that there is no equity by
which a aaan can be hanged, so it is true that neither is there any
equity by which a man can be taxed: there must be direct au-
thority for taxing, and therefore we must take the laws as framed
at the time* and see to whom they were applicable when made. If
circumstances have since arisen by which orders of men exist to
whom these laws are not applicable, it does not belong to Courts,
but to the Legislature, to extend them to such classes of persons.
On that principle, and with these views* I bend my mind to the in-
terpretation of the acts of Parliament.
The leading act is 1579, c 74, which orders the provost and bailies
within burgh, and Justices in the parishes to landward, to make, up
a list of poor &c, and ' to tax and stent the haill inhabitants within
' the parochin, according to the estimation of their substance, with-
4 out exception of persons;' and provides, that if any refuse ' to con-
' tribute, such obstinate and wilful person being called before saidia
' provosts and bailies within burgh, or Justices in parochinis to land-
• wart, and convict thereof,' shall be imprisoned until performance.
Now, taking this word ' inhabitant' in connexion with the times in
which the act passed, I cannot conceive that the term should apply
to the defender. In those times there was no such thing as persons
having villas out of the burgh 4 all the traders were inhabitants ; and
that word could never convey any idea of a person merely trading
in one place, but having a dwelling with his family in ^another ; he
might be a sleeping partner of a trading company, and as such be
liable for other taxes, as cess, which is laid on traders, and in respect
of trade ; but, as to a tax kid on inhabitants merely, I cannot con-
ceive how it can extend to a person in this situation. This con-
struction is strengthened by the clause for eiting obstinate and wilful
persons before the provost and bailies in burghs ; so that, unless it gives
a jurisdiction which otherwise they would not have had, the defender
cannot be held liable. It is much strengthened also by the act 1597,
c 279, setting forth that many * inhabitants that dwells and remains
f within the free burrowes with their families,' refused to contribute
to the support of the poor. Perhaps this act might have originated
in some doubt as to who were inhabitants, and it describes tbem as
those dwelling by their families within the burgh. Under this act,
there can be no doubt that merely having a place of business will not
do. Persons, to be liable, must have residence by their families.
Questions may certainly occur as to how long residence, and what
kind may be necessary ; still there must be a residence.
The next act regarding the poor is 1663, c 16 ; and I mention it,
chiefly because it appears to me tobe greatly misunderstood and misap-
plied. It is not applicable to the poor in general at all ; it ordains all va-
grant and idle, poor drc. to be apprehended by those authorized, and
40G CASES DECIDED IN THE
forced to work by all kinds of punishment, life and torture excepted ;
and for the encouragement of persons giving work to such, they are to
be allowed so much a day, not for the poor in general, but for the poor
« so employed ;' and it is only for this purpose that an assessment is
authorized by that act. Then comes the proclamation in 1692,
which I quote as law, having been ratified by Parliament. It seta
forth by referring to the previous acts of Parliament, and bears to
be * in prosecution whereof/ and imposes the assessment on the house-
holders of the parish. This proclamation only related to landward
parishes, (the case of burghs being adverted to in that of 169S) ; but it
may serve to show the interpretation put on the act 1579 as to what
inhabitants were meant, that in the proclamation they are called house-
holders ; and surely Mr. Parker cannot be considered as a house-
holder, who must be held to be a person keeping house within burgh.
The next proclamation 1693 orders all magistrates of burghs * to meet
' and stent themselves conform to such order and custom used and
' wont in laying on stents, annuities, or other public burdens, in the
' respective burghs' — if it had stopped here, it might have reached
this gentleman, as other stents are laid on by trade ; but it 'goes
on, — ' as may be most effectual to reach all the inhabitants,' bringing
us back to what an inhabitant is, and a person must be so, to be taxed
by this proclamation ; and, upon the whole, it does appear to me im-
possible to reach this gentleman, whom I cannot consider as an in-
habitant. Ab to the cases quoted, there are hardly any coming pre-
cisely to this. The case of Buchanan does not, as he certainly had
a dwelling-house in Glasgow, in which he kept servants, and where
he did occasionally eat and sleep, and to a certain extent was an in-
habitant. The case of Cargill does not apply to this, the question
being as to the rule of proportioning the half on the tenants, when
it was found that there must be but one rule as to all. In the case
of Manson v. Cochrane, the Court adopted the rule of 1579, atent-
ing all persons in the parish according to their substance; and whether
it was. right or wrong, it does not apply here, as the gentleman was
unquestionably a residenter ; and, on the whole, I feel compelled to
give an opinion that Mr. Parker is not liable.
Lord Justice-Clerk. — When this case came before us in the Second
Division, we thought it right that a question of such importance
should be decided by the whole Court. After the opinion given by
your Lordship, however, I shall only make a few observations in addi-
tion, concurring as I do in that opinion, although I fairly confess that,
from the circumstances alluded to by your Lordship, I did approach the
consideration of the case rather with a prejudice against Mr. Parker's
plea ; but after going through all the statutes, and analogous statutes,
I am satisfied that as to assessments for the poor within burgh, *it is
impossible to come to any conclusion, but that actual inhabitants were
alone intended at the time of passing these statutes^ and in a question
of taxation founded on statute law, we must interpret the statutes as
COURT OP SESSION. 407
would have been done at the time of their being enacted ; and it is
quite apart to allow considerations of expediency to have any weight
in construing these acts of Parliament. As to the statute 1579,
I would observe, that within the act itself there is a clause besides
that alluded to by your Lordship, illustrating the meaning of inha-
bitant, viz. that which provides a power to persons therein mentioned
to grant licenses to beg alms, instead of resorting, to contributions ;
and persons having such licenses are to ask alms of parishioners ' at
4 their awin houses ;' and in virtue of such licences they certainly
could not go beyond the bounds of the parish. I will just make an-
other observation as to qualifications for offices within burghs. It is
free from all doubt, that if it were not that usage and practice creates
the set of a burgh, and if the question were raised for the first time,
there could be no hesitation in rejecting the fictitious residence of hav-
ing a shop &c., and giving the privilege to those only actually resid-
ing ; and where there has been no such usage thus constituting the set
of the burgh, the Court has always required actual residence, as in the
case of Queensferry, (the judgment in which was affirmed on appeal,)
where one of the deacons was only separated by a strand from the
royalty, and his vote was rejected. There is one other act to which
I beg your attention, viz. the act 1663, as showing the understand-
ing of the Legislature itself as to the meaning of * inhabitants' used
in 1579, c 74 ; for, in reciting that act, it states the object of it to be
* to tax and stent the persons within the parish,'
As to the other matters of the case, it is not necessary to trouble
your Lordships with them, after the opinion which has already been
delivered ; but as to the proclamation, (which, though I believe it
weighs greatly with some of my brethren, was not founded on at the
Bar,) I shall only observe, that we cannot stop short at the words
* used and wont,' and say, that, in virtue of it, we are entitled to tax
people never in the burgh at all, because such persons may be taxed
for certain stents. We must go on with the words, ' so as to reach
* the haul inhabitants,' and put a common sense meaning on them.
In regard to the practice inquired into since the case was before
us in the Second Division, it appears so vague and various,— so loose,
and so irreconcileable to any view of law, that I cannot allow my
mind to* be influenced by it ; and although the practice in Glasgow
has been so, still it is not supported bylaw; for even supposing Mr.
Parker an inhabitant, he must be assessed for his whole means and
substance from whatever source, and his personal estate wherever
situated. Both in Dreghorn and Carrick it was so decided. There,
the parties were not taken as the partners of the concerns which
they carried on, but their whole substance was taken. This is a most
important circumstance, that inhabitants must be assessed in their
whole means and substance, and shows the incorrectness of the rule
founded on by the pursuer. On the whole, I am for adhering.
Lord Cobehouse*— I consider this case to be attended with great
408 CASES DECIDED IN THE
difficulty, arising from the proclamations, on which I consider the
poor laws to rest, not being so explicit as they should be ; but I
hare formed a dear opinion, different from that now expressed. It
is proper to attend to the footing on which the poor law* now rest.
It was stated from the Bar, on both sides, that they rest on the
act 1579. I consider that view to be wrong, and that they rest en-
tirely on tbejproclamations. The act 1579 proceeds on an universal
assessment of means and substance* without any distinction of pro-
prietors,of lands and heritage, and other inhabitants, or between
burghs end landward parishes. The act 1663 was lor a particular
purpose ; not for the aged and impotent, but raising assessment to main-
tain vagabonds* which was laid by this act, the one half on the heri-
tors, and the other half on the possessors* It is well known that the
act 16&3, and the subsequent one of w72, went into desuetude.
We hare the opinion of Sir George Mackenzie to that effect. Then
came the proclamations, which do not revive the act 1579 univer-
sally ; on die contrary, they borrow the rule of landward parishes
from the act 1668, laying one half on heritors, and the other on
houeehdders— extending that mode of assessment, originally intended
for vagabonds only, to the general assessment for the poor. They do not
provide how it is to be laid on individuals ; but it has. been construed
that as to the share laid on heritors, it may be levied according to
the valued or the real rent f— or, for aught I see under the word
* otherways,' it may legally be laid on according to the means or
substance of the heritors. In practice, the other half is laid on ten-
ants according to their rents, and not on means and substance, un-
til perhaps a late decision. As to burghs, there is a distinct rule
laid down in the proclamation 1693, which is, that they shall be
taxed ' conform to such order and custom used and wont in laying
' on stents, annuities, and other public burdens in the respective
* burghs, as may be most effectual to reach all the inhabitants.' It
is not required that all burghs should stent in the same manner, but
merely that they shall do so conform to the usage in each burgh
respectively. Greet latitude therefore is allowed, and the mode
must be such as not only to follow the rule of ordinary stents^ but
also to reach all the inhabitants, even though not liable to stents.
Such being the principle of assessment, we must attend to the
circumstances of the case. There is no dispute as to facts; and the
question is, Is this gentleman liable under the proclamation 1693 ?
The argument of the defender rests on the construction of the word
' inhabitant,' as used in the act 1579. I humbly conceive that a
statute of this kind must be construed according to equity, not to
law, as, by the authorities of England, all remedial statutes are
to- be liberally construed. It is in rain to say that this ia qwt a
question between the public and the poor. It is n most import-
ant point to the poor, whether a great proportion of merchants in
Glasgow shall or shall not be subject to taxation for their asip-
COURT OF SESSION. 400
pert. But, ©ran between two individuals, where there is ft general
taxation, there must be en equitable construction in relation to
them, and not one of strict law. Then let us see on what princi-
ple ' inhabitant' is restricted to those levant et oouchant. I cannot
help thinking that the construction put on Tarious other acts of Par-
liament, containing the words inhabitant and indweller, is of great
importance. Aa to offices within burgh, I bad understood that by
law persons were eligible, although not strictly inhabitants, and that
the Queensferry case was decided on words of set, and not on gene-
ral lawr But there is another most important class of statutes in
relation to carrying on foreign trade, whieh always requires two requi-
sites, being a burgess and an inhabitant ; and these have been li-
berally interpreted, ae as to include persons not baring a dwelling-
house within burgh. As to sleeping partners, it is oarer inquired, whe-
ther they are inhabitants or no ; but there must always be one partner
of the company subject to burgal prestations, in order to enable them
to enjoy the privilege of conducting their trade, which could not be
carried on by a clerk. The act 1466, ell, declares that none shall
trade but 4 freemen burgesses dweUend within burgh, or their fiuni-
' liara, fisctours, serrantes, being with theme in bousehalde at meate
1 and drinke.' The act 1503, c 84, leaves out burgesses, and says
that, no persona dwelling outwith burghs shall carry on trade ;. yet,
not withstanding, these statutes bare been construed in practice so
as to permit numerous persons living out of burgh to trade, if baring
a counting-bouse within iw A case mentioned by Mr. Jeffrey, Barbers
of Edinburgh t>. M'Duff and Menaies, contains a commentary on the
moaning of the statutes* The party there was found entitled by
the Lord Ordinary to go on with his trade in Edinburgh while he
resided in Leitb, and of course was able to give his personal attend-
ance at his place of business. But in the course ef the proceedings
he lemored to a distance in the north, where he was no longer able
personally to carry on business, or perform watching and warding,
and he was then found not entitled to do so by another. Here,
then, k a class of statutes still in observance, in which a party is con-
strued to be an ind weller, if in a situation personally to carry on busi-
ness in the burgh. Then, aa to the statutes regarding public burdens
and limited to indweOers, it appears from the act 1597 that it had been
pleaded that persons not trading were not liable ; and this was. the
cause of the act 1597 extending the burden to the whole inhabitants,
whether trading or not. But it does not define inhabitants as levant
et amehcmL We must give to that term the meaning put on it ever
since— that it means persons residing in a situation where they can
personally carry on business. Thus we hare the word inhabitant in
those statutes construed to extend to persons in the situation of the
defender. It would indeed be a great mischief, if that class of persons
moat able to support, and who create the poor, should be exempted
on account of that rery fortune, which, while it enables them to hare
410 CASES DECIDED IN THE
separate residences at a distance from their place of business, renders
them most proper to be subjected to the burden of supporting the
poor. But when we come to the proclamation 1693, there can be
no doubt, as it includes at least all who are stented, though h also
warrants a mode of assessing, so as to reach the whole inhabitants.
This is not a restrictive, but an extending clause ; and therefore I
conceive that Parker is equally liable in assessments for the poor
as he is for stents on trade.
As to the collateral arguments used for the defender, I think they
are all without foundation. It is said the principle of the defender
goes too far, since if Parker be rightly assessed, other traders never
within the burgh, as sleeping partners of companies trading in the
burgh, may be stented. The answer to this is, that sleeping part-
ners are not known to the Magistrates, and they take the represen-
tatives, who, as burgesses and residenters, carry on the trade.
It was stated at the Bar that, taking the act 1579, it was incom-
petent to assess on means and substance in various places. This pro-
ceeds on a misapprehension of the law ; for it is nowhere said that
persons having merely moveable property cannot be assessed in
more parishes than one. But a mode of relief is provided as to
burghs in the statute 1597, c 276, declaring that persons are not to
t be taxed within burgh on their lands and livings outwith burgh ;
and if Parker is taxed elsewhere on his living outwith burgh, he
can get relief, which he would not have, if he were assessed as a
possessor in more than one landward parish. And this also answers
another objection, and justifies the Magistrates in restricting the as-
sessment to the stock in trade within burgh, as they are prohibited
by the act 1597 from taxing persons having property outwith burgh,
not merely for their lands, but also for their livings outwith burgh ;
and besides, if that be the consuetude of the burgh as to other town
taxes, then, as directed by the proclamation, it must be the rule for
assessing for the poor also.
Another objection is founded on this— that if. Parker were a
pauper, he would not be entitled to relief. It is sufficient, in an-
swer, to say, that the obligation and claim are not co-relative, as one
may be taxed on land in half a dozen parishes without being entitled
to relief; and also a man may be an householder, and yet not have
a domicile for three years.
Last of all, it is said that the statutes have in view persons living
within the jurisdiction of the Magistrates, from the remedy provided
for persons refusing to pay their assessments ; but this provision arose
from all the inhabitants, at the time of passing the act, living within
burgh. If liable, however, for the tax, the remedy would apply.
None of these collateral arguments, therefore, support the judaical
construction contended for by Parker, especially as I can see no
authority for saying that a man cannot be assessed on means and
aubstance in more parishes than one. As to the consuetude of Scot-
COURT OF SESSION. 411
land, it certainly is not sufficient, and we must lay it out of view ;
but I cannot lay that of Glasgow out of view, as, under the terms
of the proclamation 1693, the usage of each particular burgh must
regulate; there can be no doubt as to the usage here, and we
have also the judgment by the Lord Ordinary in the case of Allan
acquiesced in. I do not think the case of Buchanan a precedent
in point here ; but it touches an argument which shook me for some
time, as to whether a person can be assessed in two parishes, as Mr.
Buchanan had a domicile in Dumbartonshire, where he might have
been assessed according to his means and substance. It is not ne-
cessary to allude to the case of Cargill, as it has nothing to do
with this question ; nor has the case of Cochrane v. Manson. I have
some doubts as to that decision, not so much from the conclusion
come to by the Court, as on the ground that the act 1579 is there
taken as the rule for assessment. I do not think it wrong to assess
a man in two characters, as an heritor and a householder. He may
properly be assessed on his lands as heritor, and on his means as
householder ; but my objection is, that the party in that case was as-
sessed in three characters, and there the decision is wrong.
On the whole circumstances, therefore, in the question in the or*
dinary action, I am inclined to think Mr. Parker liable. As to the
question in the advocation, I am rather inclined to think that the
Magistrates were wrong in sustaining their jurisdiction ;^for, while a
statute, so far as it is remedial, must be construed liberally, yet, so
far as it is of a different character, it may be construed strictly.
The other Judges did not deliver their opinions, but the votes were
given as follows : —
For adhering to the Lord Ordinary's interlocutor, Lords President,.
Justice-Clerk, Pitmilly, Meadowbank, Mackenzie, and
Newton.
For altering, Lords Craigie, Balgray, Gillies, Allowat, Crin-
gletie, Eldin, Mkdwyn, and Corehouse.
JPursuer's Authorities.— A. v. B. Jan. 16. 1667, (1896) ; Barbers of Edin. Dec. 4.
1738, (1925) ; Allan t>. Lawrie, Feb. 3. 1792, (by Lord Dreghorn, not reported) ;
Collector of Glasgow Poor's Rates v. Buchanan, Nov. 22. 1798, (not reported) ;
Town of Inverness, Nov. 1663, (13061) ; 2. Coke, Inst 702 ; Rex v. Hall, (1. B.
and C. J23) ; Rex v. Poynder, (1. B. and C. 178.)
£>c fender's Authorities.— 1579, c. 74, 1597, c. 279, and Mackenzie's Obs. p. 303;
1. JBrsk. 7. 63 ; Lawrie, Dec. 2. 1797, (10587) ; Ross t>. Carrick, Dec. 16. 1800,
(Ap. Poor, 3) ; Gammell, May 30. 1822, (not reported •) ; Cochrane, Feb. 11. 1823,
(ante, Vol. II. No. 183) ; Fraser, Jan. 14. 1795, (F, C.) ; Sharpe, Fairlie, and Co*
Feb. 21. 1822, (ante, Vol. I. No. 382.)
W. Dickson, W. S- — Macmillan and Grant, W. S. — Agents.
Thie case was compromised, after a reclaiming petition had been ordered to be
412 CASES DECIDED IN THE
No. 23 1 . Lieutenant D, Campbell, Suspender.— Jameson— Donaid.
Colodel A. Macdonkll, Charger. — Skene— Matheson.
Process— 6> Geo. IV. * \Wh-Legai ft'&'f em*.-~Held<-L-- That it u incompetent,
after the record is closed, to turn an irregular charge into a libel ;— and,— 2.—
That a charge against the drawer of a bill, proceeding on a protest recorded, not
in the jurisdiction where he resides, but where the bill is payable, ii
Feb. 22. 1827. LiBUTtvjuffT Camfbkix, as drawer of a till for £\%l. OS.,
1st Ditiwoh. Art^ 5,°rt Wiffiam, 14th August 1817, payable four years there-
Iiord Eidin. ftfter, and accepted by John Campbell, was charged at the in-
H. stance of Macdonell of Glengary, who had acquired the bill by
indorsation. Of this charge Lieutenant Campbell brought a sus-
pension on various grounds, but particularly that the protest on
which the diligence proceeded had been recorded in the books of
the Sheriff of Inverness-shire* whereas he had, more than two
years previously, left that jurisdiction, and now resided in the
county of Ayr ; and he therefore contended that the charge was
inept. In answer to this objection, the charger admitted the facts
on which it jested, but proposed, in his answers to the reasons of
suspension, that the charge should be turned into a libel. He,
however, allowed the record to be closed before getting this done;
and thereafter, on hearing parties upon the preliminary objections,
and particularly upon that to the regularity of the diligence, the
Lord Ordinary * turned the charge into a libel, and appointed
' the counsel for the parties to be ready to debate on the merits
' at next calling.1
Campbell then reclaimed, and contended,
1. That, after the record was closed, it was not competent to
, turn the charge into a libel ; and,
2. That if it was not so, then, as his objection was well found-
ed, the letters ought to be suspended.
To this it was answered, That as it was part of the established
law of Scotland that an irregular charge might be turned into a
libel at any time before final judgment, and aa there was no pro-
vision in the Judicature Act either taking away that privilege*
or prohibiting its being exercised after the record was closed, a
party could not be deprived, by implication, of the right vested
in him.
The Court unanimously altered, suspended the letters, and
found expenses due.
Lord Gillies. — According to the act of Parliament, the preliminary
defences or objections must be disposed of before closing the re-
cord. But the Lord Ordinary has in this case closed the record,
COURT OF SESSION. 413
and then heard parties on the preliminary objections, which k quite
irregular. It is only in the case where there are no such objections
or defences, or where they bare been finally disposed of or reserved,
that the record can be made up. By turning the charge into a libel,
it is plain that his Lordship considered the objection well founded ;
and indeed this is not disputed. If the question had been with .the
acceptor, it might hare been different, as Fort William was the place
of payment, and he was bound to come there and pay the bill ; but
it is one, with the drawer, from whom payment can be demanded only
in the event of the failure bf the acceptor. As, therefore, it is not
now competent to turn the charge into a libel, the objection must be
sustained.
Lord President.— I am entirely of the same opinion. What is tbi*
but an amendment of the Kbel ? And is it competent to amend the
libel after the record is closed? Certainly not. All defences and
objections of a preliminary nature must be disposed of befboe the re-
cord is made up, except in the ease where probation may be ne-
cessary, and where the Lord Ordinary may think proper to reserve
them.
Lords Baloray and Craigie concurred.
J. Gemmell,— J. Macdonell, W. S. — Agents.
J. Auchinleck, Pursuer. — More. No. 232»
J. Craig and A. Baxter, Defenders. — Skene — Christum.
This wad a question, whether tbe pursuer had shown a suffi- Feb. S3. 1887.
cient title to demand exhibition of certain title-deeds alleged to lrr p^^
be in the hands of the defender. The Lord Ordinary sustained Lord Eidin.'
the title ; but the Court* being satisfied that she had shown no D-
evidence of it, altered and assoilzied.
W. and A. G. Ellis,. W. St— W. Rinny, W. &— Agents,
J. Boyd, Pursuer: — A. Murray. No. 233#
J. Shaw, Defender. — Spiers.
ProcC*** D*clata*9r~Poor'i Bates.*— A party having raited a stuamoatf conced-
ing for redaction of a decree finding him, liable in poor's rates beyond what he
was liable for, and also for a declarator as to the rule which ought to be followed
in future ; and decree of reduction, having been pronounced, the Court refused'
to decide on the declaratory conclusion, as there was no proper party hari&p
interest before them.
The pursuer, who was tenant of an extensive farm in the Feb. S3. 1827.
of Falkirk, having been assessed with poor's rates on
the rent, being ,£480, and a decree having been pronounced j^Medwjiu
against him by the Justices of the Peace of Stirlingshire for the
414 CASES DECIDED IN THE
amount, bring £4s : 7 : 8, he brought an action of reduction of
the decree and of declarator against Shaw, the collector for the
parish.
No opposition being made by the defender to the decree of re-
duction, (because, as he stated, he considered the mode of assess-
ment which had been practised to be unjust,) the Lord Ordinary
decerned to that effect, and appointed parties to be heard on the
declaratory conclusions. That conclusion was, that it should be
found' that ' the pursuer is not liable to be assessed for poor's
' rates, conform to the said gross rent of his farm, as a standing
' rule of assessment ; but that he is liable to be assessed for his
' proportion of poor's rates, along with the haill inhabitants of the
4 parish, according to their means and substance, wherever si-
c tuated."
. On this point his Lordship appointed Cases, which he after-
wards reported to the Court ; but their Lordships, considering
that the question in dispute between the parties had been ex-
hausted by the decree of reduction, and that they could not be
called on to give judgment upon a declarator where there were
no parties having interest before them, dismissed the action.
J. Brown, — Ker and Dickson, W. S. — Agents.
No. 234. Mrs, Scott, Pursuer. — D. qfF. Moncr&ff—Shaw.
J. Napier, Defender. — SoL-Gen. Hope — Skene — Christison.
Proce$*— Title to Sue or be Sued— Partnership, — The manager and partner of a pri-
vate banking company having acquired a disposition and assignation to an he-
ritable right aa manager; and having, after the dissolution of the' company,
claimed in virtue thereof in a ranking and sale ; and having been opposed by the
granter of the deed on the ground of its having been obtained uauriously and
by fraud ; and the granter having raised an action of reduction in support of the
objections to the claim, and having directed it against him as manager of the
company, and not having called the partners— Held that the summons was irre-
gular,—that he could not be sued as such,— and that process must be sUted till
the other partners were called.
Feb. 23. 1827. ' The late William Glendonwyn of Glendonwyn, (who had three
lw Division. daughters,) having disponed his estate of Parton, under burden of
Lord Eldin. the price of £60,500, to Mr. Scott, (who had married the young-
D. est daughter,) and having died, Mrs. Scott acquired right to one-
third of the price as one of the three heirs-portioners, and also to
a provision of i?4000 as a preference over her other two sisters.
In the month of November 1812, Mr. Scott granted an heritable
bond and disposition over the estate of Parton to Mr. Napier for
£ 1 5,000 ; and immediately thereafter Mrs. Scott, on the narrative
k
COURT OP SESSION. 415
of that deed, granted a disposition and assignation, whereby she
consented that Mr. Napier, his heirs, assignees, and successors,
should be a preferable creditor to her both over the price and
the lands themselves ; and she also assigned to him her one third
share or portion, together with the preference of i?4000.
Thereafter, in January 1813, she granted another disposition
and assignation, on the narrative that the Galloway Banking
Company had agreed to grant Ur her husband a cash-credit for
^10,000, on condition of his granting a bond and disposition over
the lands of Parton, and that Mrs. Scott should assign in secu-
rity her share of the price thereof/ She accordingly, in consi-
deration of the cash-credit, assigned to Mr. Napier, as manager
of the Galloway Banking Company, and to his successors in
office, her third share or portion of the price, and also her prefer-
ence ; and declared that iu all competitions Mr. Napier as ma-
nager, and his successors in office, should be preferable to her.
Mr. Scott having become bankrupt, a ranking and sale was
brought of the estate of Parton, in which Mr. Napier, founding
on the above deeds, claimed to be ranked on the one in his own
behalf, and on the other as manager of the Galloway Banking
Company. To these claims objections were lodged by Mrs.
Scott and her tutor ad litem, on the ground that the deeds had
been. obtained from her with a view to support certain extensive
usurious transactions in which Mr. Napier had got her husband
involved ; that they had been procured from her by means of
fraud and deception ; and that they were otherwise ineffectual in
point of law. In answer to these objections, Mr. Napier contended
that they could not be listened to, except in a reduction, and
that he was therefore entitled to be preferred hoc statu.
In the mean while the Galloway Banking Company had been
dissolved ; and to obviate the above plea, Mrs. Scott, with con-
currence of her tutor ad litem, brought an action of reduction .
against Mr. Napier, * for himself, and as manager of the late
* Galloway Banking Company/ in which, after calling for exhibi-
tion of the two deeds granted by her, and other relative writings,
she alleged that they had been obtained for usurious considera-
tions, and therefore ' the said dispositions and assignations being
* granted and received as collateral obligations for the securing
' and realizing to the said John Napier for himself, and as raa-
* nager foresaid, more than lawful interest, are null and void in
' terms of law, and of the act of Parliament before recited ;' and
she concluded that, for that and for various other reasons libelled,
and particularly fraud, they ought to be reduced.
This summons having been remitted to. the process of ranking
vol. v. 2d
416 CASES DECIDED IN THE
and sale, Mr. Napier maintained, as a preliminary defence, that
as he was called as manager of the Galloway Banking Company
in relation to bank transactions, Mrs. Scott was bound to call his
partners and their representatives ; and he also contended that the
Summons was irrelevant, or at least was not sufficiently specific in
the form in which it was laid.
To this it was answered,
1. That as the first deed libelled was in favour of Mr. Napier
individually, be was the proper party ; and that with regard to
the other, as it was taken in his favour, he stood in the situation
of a trustee whose constituents it was not necessary to call.
2. That as the reduction had been brought to obviate a point
of form pleaded in the process of ranking and sale, and as he
there claimed in the character of manager, he stood in the situ-
ation of a pursuer ; and that as the reduction was truly of the
nature of a defence, he could not object to its being brought in
the form in which he himself appeared as a claimant in Court ;
and,
3. That as he was the leading partner, and was called nomina-
tim as representing the others, and as it had been decided in the
late case of the Sea Insurance Company (see ante, No. £26,) that
it was sufficient to call the office-bearers, the defence was un-
founded.
The Lord Ordinary repelled this defence ; but the Court alter-
ed, and sustained the dilatory one, ' in so far as the defender is
< called and concluded against as manager of the Galloway Bank-
c ing Company ; and remitted , to the Lord Ordinary to sist the
' present process to that extent, until the proper persons are called
' and made parties to the action."
Lord President.— The Galloway Company is dissolved— -the part-
ners of it are no longer in communication with Napier, and his office
of manager has ceased. Even if the pursuer were to succeed in re-
ducing the deeds as against Napier, it would be of no avail against the
other partners. Besides, the reduction is laid on the head of usury
committed by the Galloway Banking Company, and therefore the
partners of it ought to be in the field, in order to meet and explain
that charge.
Lord Gillies. — There is no usury on the face of the bond ; and, in
order to prove the allegation, the pursuer must go into extrinsic cir-
cumstances, and particularly the transactions with the bank. But
the partners %re the proper parties with whom to discuss that ques-
tion. This is not the proper stage for inquiring into the regularity
of the summons ; that can only be done after the preliminary de-
fences have been disposed of.
COURT OF SESSION. 417
Lord Craigiiu— I have considerable doubts of the opinions which
hare been expressed. Private banks have been allowed to sue in
name of their manager ; and indeed, if they were not so, I cannot see
how they could obtain adjudication for any debt which may be due
to them. But, at all events, when a party has been authorized to
act as manager, and to take deeds in that character, I apprehend that
he is not entitled to abandon it, and insist on the partners being
called ; and that more especially when he is charged with having ob- '
tained these deeds usuriously, and by fraud and deception.
Lord President. — When I first came to the Par, no private com-
pany was entitled to sue in its social name. It was necessary that
it should be in name of the partners, as trading under a particular
firm.
Loan B algray^— If this were a question as to inflicting a punishment
on Napier for having done illegal acts in the character of manager,
perhaps Lord Craigie might be right ; but the object of this action
is to set aside a deed belonging to the Galloway Banking Company,
and which he holds as a mere mandatory. Besides, it is rested on
a charge of usury by the partners of that bank, and therefore they
must be called.
Donaldson and Ramsay, W. S<— R. Rutherford, W. 8. — Agents.
J. Hunter, Petitioner. — Jameson. No. 235.
J. Dickson or Roughead, Respondent. — Skene.
jfppeal. — Circumstances under which leave to appeal was refused.
Araca the judgment had been pronounced in this case, (see Feb. 03. 1827.
ante, Vol. V. No. 157,) Hunter presented a petition for leave to lBT~^710If.
appeal. This was resisted on the ground chiefly, that if he were h.
permitted to do so, the respondent would not be able to obtain
interim execution ; and. that the case was ia such a shape, that it
might be finally exhausted by a simple motion before the Lord
Ordinary.
The Court, on these grounds, refused the petition.
J. H. JL.OTB ian, W. &— R. Matthew,— Agents.
Sd2
418 CASES DECIDED IN THE
No. 236. Tutors of the Earl of Eglintoun, Petitioners. — Jameson.
W. F. Walkeb, .Respondent. — Hamilton.
Appeal, — Circumstances in which leave to appeal was refused.
Feb. 23. 1827. After the dilatory defence pleaded in this case had been re-
"T celled, (see ante, Vol. V. No. 145,) the petitioners applied for
1st Division, f * v '_ . _ *' . F , r* .
S# leave to appeal ; but the Court refused it, as there were other
dilatory defences which ought to be disposed of in the first place,
otherwise an appeal might be taken on each of them.
Tod and Hill, W. S. — J. Campbell, W. S. — W. Waddell, W. S«—
Agents.
No. 237. F. C. Stewabt, Pursuer. — D. qfF. Cranstoun — Moncreiff—
Skene.
S. M. Fulleeton and Others, Defenders. — Jeffrey — FuHerton.
Et e contra.
Tailzie— Reparation.— A party having succeeded to an estate by virtue of an en.
tail prohibiting sales, but against which there was no irritant nor resolutive
clause— Held,«—1. — That he was entitled to sell the estate ; — but, — 2.— That he
was bound to reinvest the price in lands, and to take the titles under the term*
of the entail.
Feb. 23. 1827. By a deed of entail, dated the 28th of May 1763, and recorded
1st Division. m ^e reg*8ter °f tailzies on the 8d of July 1771, John Murray
Lord Alioway. of Blackbarony, otherwise John Stewart of Ascog, granted pro-
H. curatory for resigning the lands of Ascog, lying in the county of
Bute, and others situated partly in Argyleshire, and partly in
Peebles-shire, whereby, on the narrative that he was * resolved, for
the standing of my family, to make the settlement and tailzie after
mentioned, with and under the burdens, provisions, clauses irri-
tant and resolutive, after expressed,'1 he resigned the lands for new
infeftment to himself and his wife in liferent, and the heirs-male of
his body in fee, whom failing, a long line of heirs-substitutes, but
with and under the several provisions, restrictions, irritancies,
and burdens after expressed, and reserving to my said spouse
the liferent provided or to be provided to her of the whole or
any part of the said lands ; declaring hereby, that the said heirs
of tailzie and their foresaids, according to their order above,
succeeding to me, shall, by acceptation of these presents, not
only be personally liable for all my just and lawful debts already
contracted, or which shall hereafter be contracted, and shall be
justly due by me at the time of my decease, and for all gratuitous
lxnu}s, bills, and other obligations that shall be granted by me,
COURT OF SESSION. 419
* to the value of the estate succeeded to ; but also the lands and
' others foresaid and maills and duties of the same, shall be
* really affected and burdened therewith, with a preference to all
c others ; and further, the said heirs of entail, and the husbands
' of the heirs-female, shall be hereby bound and obliged to use
' the name and wear the arms of Stewart of Ascog.'
Then followed these prohibitions : — »« And it is hereby expressly
' provided and declared, and shall be contained in the infeftments
4 and others to follow hereupon, that it shall be noways leisum or
* lawful to the heirs of tailzie and others succeeding to me by
' virtue hereof, in no time coming, to alter, innovate, and annul
* this present tailzie, or invert the order of succession, hereby ap-
c pointed and settled by me, or which shall hereafter be appointed
c and settled by a writing under my hand, in manner foresaid,
1 any manner of way, nor to possess the above lands and estate by
( any other title than by this present deed of entail ; and they
( shall be bound to registrate the same, and any additional settle-
( ment or deed relating thereto, in the Record of Tailzies and
' General Register, within six months after my decease, and their
' coming to the knowledge thereof; nor shall they have any power
* or liberty to sell, annailzie, or wadset the lands and others
* foresaid, or any part thereof, except allenarly such a part and
* portion of the same as shall be found necessary for relieving,
* paying, and satisfying the debts and obligements contracted and
* granted by me, and which shall be justly resting by me the
* time of my decease, or so much of my said debts as shall not be
* cleared and satisfied by any of the heirs of tailzie out of their
r own proper means and estate, in manner underwritten, with
* power to any of my* heirs of tailzie succeeding to me, by virtue
' of these presents, to wadset, under reversion, so much lands
* allenarly as shall correspond and have just proportion to my
* said debt resting and unpaid in manner foresaid, and no more,
c and whereof the maills and duties shall not exceed the annual
* rent of the debt to be paid therewith ; nor shall the said heirs
4 of tailzie, and others succeeding to me in any time coming,
* have power or liberty to contract any debts or sums of money,
6 or even grant provisions to younger children, sons or daugh-
* ters, except as hereafter is provided, whereby the lands and
* others above written may be anyways affected, or grant any
4 heritable or moveable bonds, infeftments of annual rent, and
« other rights and securities whatsomever, whereby the lands and
' others foresaid may be anyways evicted or carried off, to the
« prejudice of the next succeeding heir of tailzie ; nor shall the
* said heirs of tailzie, or others succeeding to toe, suffer or permit
490
CASES DECIDED IN THE
< the lands and others above written, or any part thereof, to be
' adjudged for any debt due by me, at least shall not suffer the
* legal reversions of the said adjudications to expire, but shall
< timeously redeem the same before they be within two years of
< expiry ; nor shall they suffer the lands and others foresaid to
< fall in the superior's hands, by not timeous payment of the feu
4 and other duties payable furth thereof, nor by recognition,
* or otherwise ; nor shall they commit the crime of treason, or
( lease Majesty,* whereby the lands and others foresaid may fall
< in the King or Queen's hands, by reason of forfaulture, any
' manner of way.'
These prohibitions were followed by the irritant and resolutive
clauses in these terms, (but which, it will be observed, were not
directed against sales) : — « Declaring, likeas it is hereby expressly
provided and declared, and shall be provided and declared in
the charters, infeftments, and others to follow hereupon, that if
any of the heirs of tailzie above mentioned, or the husbands of
the heirs-female, shall not use the name and arms of Stewart of
Ascog, or shall alter and innovate this present tailzie, or invert
the succession from the order hereby appointed, or which I shall
appoint by a writing under my hand, or possess the said lands
and estate by any other title than these presei\ts, or fail to re-
gister the same, or any additional settlement relating thereto, in
manner as above, or if they wadset any of the lands and others
foresaid, except so much allenarly, or such a part or portion of
the same, as shall be found necessary for relieving, satisfying,
and paying the debts and obligements contracted, and which
shall be justly resting the time of my decease, or so much of
my said debts as shall not be cleared and satisfied by my said
heirs of tailzie, their own means aftd estate, in manner foresaid,
and which they have power to wadset, in the terms above pro-
vided allenarly ; or, if they shall contract any debts, or grant
any provisions to younger children, sons or daughters, (except
as hereafter is provided,) or grant any bonds, heritable or move-
able, or other rights or securities, whereby the lands and others
foresaid may be affected, evicted, or carried away to the preju-
dice of the next succeeding heir, then not only shall the deeds
so to be done by them be void and null in themselves, as if the
same bad never been granted or done, and shall be noways va-
lid for affecting and burthening the lands and others foresaid,
or any part thereof, to the prejudice of the next succeeding heir
of tailzie their peaceable possession, bnriking and enjoying of
the same free of the said debts; deeds, and burdens thereof; but
also, the said heir contravening, for him or herself alooe, shall
COURT OF SESSION. 421
' ipso faqto lose and amit the benefit of this present tailzie, and
' the lands and others foresaid shall fall and accresoe to the next
* heir provided to the succession as above, in the same manner as
' if the former heir who shall contravene had never existed, or
( had been deceased ; and the said heir contravening shall be ob~
' liged to denude in favour of the next heir of tailzie, who shall
( have power and liberty to enter and obtain themselves infeft in
( the lands and others foresaid, by way of adjudication, dcclara-
4 tor, service, or any other method that in law shall be proper, as
' accords.9 The deed also contained a general disposition of all
the heritable and moveable property of which the granter should
die possessed in favour of the heirs-substitutes, declaring that
they ' shall be holden and obliged, in the strictest manner, by
' their acceptance hereof, to convert the said heritable and move-
c able subjects, generally above disponed, into money, and to up-
' lift the debts and sums of money above assigned ; and, after
4 payment of my proper debts, and the legacies, if any be, to
( ware, employ, and bestow the free residue or remainder of my
' said separate effects, heritable or moveable, when so converted,
' upon purchasing of land in Scotland, and to take the rights and
' securities of the lands so to be purchased, in the form of a strict '
* entail, to the same series of heirs, and with and under the same
' conditions, provisions, burdens, reservations, restrictions, limita-
' tkms, clauses irritant, and faculties, as are above set down with
' respect to my tailzied lands, herein mentioned, and to put the
' said tailzie on record, 'so as the lands thus to be purchased, and
* these my other lands, may be conjoined inseparably in all time
' thereafter/ There were also various other clauses which were
not material to the question at issue.
In virtue of this deed, Archibald M' Arthur Stewart, on the*
death of the granter, succeeded to the lands, and from the pro-
ceeds of the moveable estate he purchased other lands, of which,
in July 1788, he executed an entail precisely in the same terms
as the former, and which was recorded in the register of tailzies
on the 21st of October 1816. The lands contained in these two
entails thai devolved, by the death of Archibald M1 Arthur Stew-
art, on the pursuer, Frederick Campbell Stewart, who made up
titles, and was infeft in virtue of them. In consequence of the
defeet as to sales in the irritant and resolutive clauses, he brought
a summons of declarator against the heirs-substitutes, in which,
after reciting the entails, and that he was seised in the fee of the
lands, and alleging that,/ not being prevented by the said deeds
' of tailzie or otherwise from so doing, he has fjill power to sell
* and alienate the said lands and others contained in the said two
488
CASES DECIDED IN THE
deeds of tailzie, and to dispose of the price or prices or consi-
deration to be received on the sale and alienation of the said
lands and others, or any part thereof, in such way as he may
think proper, and he intends to do so accordingly ;' he there-
fore concluded that it should be found and declared, that he
has full and undoubted right and power to sell and alienate the
several lands, &c. contained in the two deeds of tailzie before
mentioned, in any way he may think proper, for a fair price or
other onerous consideration ; and that the pursuer has full and
undoubted right and power to grant and execute all dispositions,
&c. which may be requisite or necessary for effectually convey-
ing the whole or any part or parts of the said lands and others
which may be so sold and alienated ; and that the pursuer is
not prevented from selling and alienating in any way he may
think proper, for a fair price or onerous consideration, the lands
and others before mentioned, nor from granting and executing
the dispositions and others before mentioned by the foresaid two
deeds of tailzie, or either of them, or by any of the titles under
which the pursuer possesses the foresaid several lands and others.
And further, that upon selling or alienating the whole or any
part or parts of the said several lands or others contained in the
said two deeds of tailzie, for a fair price or other onerous consi-
deration, the said Frederick Campbell Stewart, pursuer, has the
sole, full, and exclusive right to the price or prices or consider-
ations thereof; that the same are the pursuer's absolute pro-'
perty, and that he has full power to use and dispose of the same
at his pleasure ; and that the pursuer does not lie under any
obligation to invest, employ, or lay out the same, or any part
thereof, in the purchase or on the security of any other lands or
estates, or otherwise, for the benefit of the said heirs-substitutes
of tailzie, or any of them ; and that the said heirs-substitutes of
tailzie before named, or any of them, have no right or title to
interfere with or control the pursuer in the use or disposal of
the said price or prices or considerations to be received by him
in any manner of way ; and also that the said heirs-substitutes,
&c. have no claim or demand of any description against the pur-
suer, or against his heirs and representatives in the event of the
pursuer's death, for or in respect of the sales or alienations which
may be made, or dispositions or other writings which may be
granted or executed by the pursuer, in the manner and on the
terms before specified, or for or in respect of the pursuer's using
or disposing at his pleasure of the said price or prices or consi-
derations to be received as aforesaid/
During the dependence of this action, the pursuer sold part of
COURT OF SESSION./ 4»
the lands to Mr. M'Gregor, writer in Glasgow, who brought &
suspension on the ground of the doubts as to the power of the
pursuer to sell the lands ; and the defender, Mr. Fullerton,
(one of the heira-srihstitutes,) raised a counter action, in which
he concluded that it should be found ( that the said Frederick
Campbell Stewart, having sold and alienated the foresaid lands
and others contained in the said two deeds of tailzie, the price
or prices or considerations received Ntherefor belong to the
said Stewart Murray Fullerton, and the other substitutes called
by the said two deeds of tailzie, and not to the defender, to
be used by him for his own private purposes ; and 'that the
said defender has not the power to use and dispose of the same
at his pleasure: And further, that the said Frederick Camp-
bell Stewart, defender, is bound to reinvest and lay out the said
price or prices or considerations, and whole parts and portions
thereof, in the purchase of other lands and estates, for the be-
nefit of the pursuer and the other substitutes called alongst with
him under the said two deeds of tailzie, and all of them ; and
that the said pursuer has good right and title to prevent the
defender from using and disposing of the said price or prices
or considerations so received or to be received by him, the said
defender, from the purchasers of the said lands and others, to
his own advantages 'And also, that in the event of the defender
not reinvesting the price or prices or considerations received
or to be received by him for the lands and others acquired and
possessed by him under the foresaid two deeds of tailzie, in the
purchase of other lands and estates, to be taken to the pursuer
and the other substitutes as aforesaid, the said Stewart Murray.
Fullerton, and each and every one of the other substitute heirs
of tailzie under the foresaid two deeds of tailzie, have all and'
each of them legal claims and demands against the said Fre-
derick Campbell Stewart, defender, or against his heirs and re-
presentatives in the event of the defender's death, for damages and
pecuniary reparation, to the extent of the price or prices or con-
siderations received or to be received by the said defender for
the sale of the said tailzied lands and others, for and in respect
of the said sale or sales or alienations which have been made
and executed, or which may yet be made and executed by the
defender, and for and in respect of the said defender using and
disposing of the said price or prices or considerations received
or to be received as aforesaid, to his own exclusive advantage.9
The Lord Ordinary having reported the case to the Court,
and that of Stewart against Lockhart, involving the same point*
having been remitted by the House of Lords for reconsideration,
4t4 CASES DECIDED IN THE
their Lordships ordered a hearing in presence before the whole
Court.* In regard to the pursuer's power to sell to a third party
for an onerous cause, there was no dispute ; and the sole point
therefore came to be, whether he was bound to reinvest the price
so obtained in other lands, and to take the titles under the fetters,
and in terms of the entails.
• The case of Stewart against Lockhart has* it is believed, been compromised.
On remitting it, the Lord Chancellor made these observations :—
" It has been long and repeatedly settled by decisions of the Court below, and of
your Lordships, that where there is only a prohibition from selling in a deed of en-
tail, and such prohibition not fenced by irritant and resolutive clauses, the heir of
entail may sell. Scarcely a month passes, in which wo do not hear this doctrine
stated and assented to.
M In many of these cases it appears that the sale was strenuously opposed ; yet it
is surange, where so much property was at stake, that these cases had not been
followed up by some proceeding enforcing the laying out of the price, and that this
point also should not long ago have been at rest. Yet tit appeared that in this
cause the question was learnedly discussed, and only carried on the Bench by the
narrowest majority against the appellant. The person, too, who gave his casting
voice in favour of the respondents, thought the question a very doubtful one ; but
be deemed it right to rest upon a former ease, in which, however, he did not think
the point had been minutely discussed.
" We have very little help, therefore, from decisions in Scotland. In this country,
if a person make a voluntary settlement of an estate, he may nevertheless sell it for
a valuable consideration ; but, unless he hat reserved a power of altering, he cannot
revoke the former voluntary settlement. *
" In Courts of Equity in England, when this matter was discussed, it was said to
be strange that, if he sold, the price should be his own, and yet that equity should
prevent him from gratuitously altering the former settlement; and it was contended
that the same equity should attach upon the price. But it was solemnly decided
that equity did not interfere in regard to such price.
M What the precise principle was, upon which this point was decided, it is difficultto
'say ; but it has been considered, that where there is a'legal power to sell, the most
convenient doctrine is to hold that the voluntary settlement should neither bind
the purchaser nor the price.
u There is another class of cases in our law which have some relation to the pre*
sent,— those of quasi tenants in tail of estates held for lives. Where a mere tenant
for life takes a renewal to himself, it is subject to the same trusts as the former
estate; but in the case of a quasi tenant la tail, if he takes a renewal to himseb%be
holds the estate discharged of the trust, and is not bound to those in remainder.
u Here there is this difference between that class of cases and the present, as it has
been decided in the Court below, that here, though you may sell, yet, sell as often
as you will, you must, if you make anew purchase, have it settled to the same uses
M before.
" I have looked upon this as a case of great difficulty, and of great importance. I
have looked for decided cases, and for opinions of text writers, but I have found
nothing to guide us to a decision on this very important point. I have considered
it best, therefore, to recommend to your Lordships to remit this cause to the Court
below, and to direct the Division to which it belongs to take the opinion of the
other Division.
u I am quite confident that the House would proceed with a degree of rashness,
were they finally to decide this important question as it stands at present We
ought previously to obtain all the information thereon which we nan have."
COURT OF SESSION. 428
On the part of the pursuer it was maintained,
1. That as be was feudally vested in the fee, he was entitled to
the absolute property, so far as he was not effectually fettered ;
and that if he was so entitled to the absolute property of the lands,
his right must be equally as extensive when they were converted
into money ; that if he could not be prevented from disposing
of the property, there was no consistent principle on which he
could be restrained from disposing of the price ; but as it was ad-
mitted that he could competently sell the lands, and receive the
price, there was no obligation by which he could be compelled
to reinvest it in land.
Jt That although there was a prohibition in the entail against
selling, yet there was no express obligation, that if the lands were
sold, he should be bound to reinvest the price in other lands ; that
it was a settled rule, that no restriction or obligation could be
raised up by implication in an entail, even in a question inter
haeredes ; that, indeed, if such an obligation had been introduced,
it would have been ineffectual, as being a feudum pecuniae ; and
that, consequently, it could not receive greater effect, where it was
merely said to be implied.
3. That it was demonstrated that there could be no existing
obligation, from the circumstance of the incompetency of pro-
tective diligence by inhibition or interdict; because, wherever
there was an obligation either to do or not to do a particular act,
the law would interfere to give effect to it by such diligence;
so that it was plain that there was here no obligation which could
be enforced ; and that although it was true that diligence was
not granted in relation to marriage-contracts, or to obligations to
marry, or to those between master and servant, yet this arose
from the peculiarity of those contracts, and from the necessity
of maintaining paternal authority and perfect freedom ; that it
was admitted that the alleged obligation could not give any chum
of damages, and that the argument that the price must be held
as a surrogatum for the lands, was a mere petitio principii, seeing
that the very question was, whether the pursuer was entitled to dis-
pose of that price or surrogatum ; and,
4t* That as this was an entail under the statute 1685, it was not
possible to enforce it, except by virtue of that statute ; and that,
if the provisions of that statute were not sufficient, a, restriction
could not be introduced by an implied obligation to reinvest, or
by any other means whatsoever.
On the other hand, it was contended for the heirs of entail,
1. That the general principle regulating the whole practical
application of the law of entail was the absolute effect of the will
426 CASES DECIDED IN THE
of the entailer, as explicitly declared in the deed of entail', in fix-
ing the rights and obligations of the parties, in so far as those
rights and obligations were capable of bang affected by an entail
at all; that, in constrjung an entail, each restrictive clause was
entitled to independent effect ; and that as, on the one hand, fet-
ters omitted could not be reared by implication from the entailer's
intention, as presumable from those which were inserted in the
deed, so, on the other, the legal effect' of restrictions which were
expressed, could not be impaired by the entailer's neglect of some
of those precautions necessary for rendering the entail complete ;
that, by the terms of this entail, the pursuer had right only to
the estate on the condition of observing and giving effect to all
the provisions therein/contained, whereby he came under an obli-
gation to do so ; that there was a clear prohibition against selling,
which created against him an obligation not to sell, and a jus ere-
diti in favour of the heirs-substitutes to enforce that obligation,
the existence of which jus crediti was shown from their having a
right to pursue actions on the statute 1621 ; — that although the
' entailer had omitted to direct the usual penalties against the vio-
lation of that obligation, yet the obligation itself, and the jus
crediti of the heirs, did not thereby cease to exist ; that, conse-
quently, the conclusions of the pursuer's summons, that he was
under no obligation not to sell, could not be supported, but, on the
contrary, must be rejected ; and the conclusion of the defenders,
that jf he did sell, he was bound to reinvest, must receive effect.
2. That the defenders did not maintain that an obligation not
to .sell, or, if he did sell, to reinvest, should be implied ; but
what they contended for was, that the prohibition, and consequent
obligation not to do so, should receive effect in the only, mode in
which it could be done ; that they did not demand payment of
damage? in money, but reparation, by reinvesting the proceeds
in land,, and that if it was established that there was an obliga-
tion not to sell, this was the only way in which reparation could
be given for the violation of it.
3. That although it was true that they could not prevent the
pursuer, by inhibition or other, protective diligence, from selling,
yet this arose from the peculiarity of an entail, because, if it were
4efective in the irritant and resolutive clauses, any one might
purchase, notwithstanding that diligence ; but it did not therefore
follow that there was no obligation, nor consequent liability for
reparation; and that accordingly, although it was admitted that
where there was an obligation in a marriage-contract for a father
to provide his estate to his son, yet the latter could not prevent
him from selling ; and in like manner, although a party had bound
COURT OP SESSION. 427
himself to marry a particular woman, she could not prohibit him
by diligence from marrying another, but could only get damages ;
so the circumstance of protective diligence being incompetent was
no test of the existence of the obligation, to the effect of giving
reparation; and,
4. That the provisions of the statute 1685 were not intended to
regulate questions inter baeredes, or to deprive them of their rights
arising from the obligation of the heir in possession, but had re-
ference to the public alone.
. The Court, after obtaining the written opinions of the other
Judges, pronounced this interlocutor :— * In the process of sus-
< pension, find, That as the provisions of the act 1685, c. 22,
' which regulates all questions with purchasers or creditors con-
4 trading with heirs of entail, have not been observed or complied
' with, so far as regards sale and alienation, to which the irritant
« and resolutive clauses are not applicable, and that the prohi-
' bitory or restraining and limiting clause cannot per se affect
' the purchaser, — repel the reasons of suspension, find the letters
' orderly proceeded, and decern : but, in the declarator at the in-
' stance of Frederick Campbell Stewart of Ascog, find that the
' pursuer is infeft and seised in the estate of Ascog and others, in
* virtue of two deeds of entail, under a provision by which it is
c declared that the heirs of entail shall not ' have any power or
u liberty to sell, annailzie, or wadset the lands and others fore-
" said, or any part thereof,4 and that the same is effectual' and
* obligatory against the said pursuer, and that he has no right to
* contravene the same ; and therefore assoilzie the defenders from
' the whole conclusions of the said action, and decern : And in
* the declarator at the instance of Stewart Murray Fuilerton,
' Esq. of Fuilerton, and others, heirs of entail to the estate of
* Ascog and others, find that the said pursuers have, under the
* foresaid provision or restraining clause, a right to compel the
* defender, Frederick Campbell Stewart, and that the said de-
* fender is bound, to reinvest and lay out the price or price's or
' considerations of the lands sold by him contrary to the said pro-
* vision or restraining clause, in the purchase of other lands or
' estates, to be settled, for the benefit of all concerned and interest-
* ed in the said two entails, conformably in all points to the pro-
' visions and conditions therein contained, and according to the
* forms and practice of the law of Scotland ; and find that the de-
c fender is not entitled to apply or use the principal sums of the
' said prices or considerations to his own private purposes, bene-
'fit, or advantage; and decern.1
Against this judgment the pursuer presented a petition, on
428 CASES DECIDED IN THE
advising which with answers, and after remitting diem for the
consideration of the other Judges, who stated that they remained
of their former opinions, the Court adhered.
Lords Justice-Clerk, Glenlee, Robertson, Pitmilly, Mea-
dowbank, Mackenzie, and Medwyn, delivered this opinion :—
Frederick Campbell Stewart succeeded to the estate of Ascog in virtue
of an entail. The irritant and resolutive clauses, while they agply
to the other prohibitions, being silent. as to the prohibition against
selling and annailzieing, he raised a declarator to have it found and
declared that he ' has full and undoubted right and power to sell and
' alienate the several lands, mills, teinds, fishings, and other subjects'
contained in the deed of entail ; * and further, that it should be found
1 and declared, that upon selling or alienating the whole, &c for a
' fair price or onerous consideration, the pursuer has the sole and
' exclusive right to the price or prices or considerations thereof ; that
' the same are the pursuer's absolute property, and that he has roll
* power to use and dispose of the same at his pleasure ; and that the
' pursuer does not lie under any obligation to invest, employ, or lay
' out the same, or any part thereof, in the purchase or on the seen*
« rity of any other estate,' &c
A sale having been made of a portion of the estate, the purchaser
also presented a suspension for the purpose of trying the right of the
seller. >
As the question is one of some difficulty and of great importance,
we consider it proper not merely to give our opinion, but to detail
the grounds on which it rests.
I. — As to the Suspension.
The act 1685, c. 22, having been passed for the purpose of regu-
lating every question between third panties, whether purchasers or
creditors, contracting with heirs of entail, as the provisions of the act
have not been complied with, so for as regards sale and alienation,
to which the irritant and resolutive clauses are not applicable, we can
have no doubt that the sale is good so far as regards the purchaser,
and that his' suspension should be refused.
II. — As to the Declarator at the instance of the Heir.
We are of opinion that the act 1685 is the code by which the
rights of third parties are regulated. But we hold that what wavs the
common law of Scotland before that statute was passed regulates
questions among heirs, and that entails containing only a simple des-
tination or a prohibitory clause are still effectual inter haeredes, ac-
cording to their nature.
It need scarcely be observed on this point, that if a simple destin-
ation in a tailzie remain unaltered, it will regulate the socceasikm,
and the heir of provision will succeed to the prejudice of the heir of
line.
COURT OF SESSION. 429
But H kxBorexDatBml to attend to ihe operation of a talUa with
prohibitory clauses, merely in questions among heirs.
We are of opinion, — 1. That the substitutes under an entail with
prohibitory clauses hare a jus crediti, which cannot be defeated by
any gratuitous deed. ' The obligation upon them not to alien or
4 contract debt, when it is not strengthened by irritant and resolutive
' clauses, is only personal against them and their heirs, but does not
1 affect creditors or purchasers ;' Erskine, b. Hi. tat. 8, § 23. Or, to
quote from the Annotations on Stair, p. 110, (which is evidently the
work of an acute and Intelligent lawyer,) ' It is clear that if there be
* no irritant and resolutive clauses in the charters and satines, this
* clause,' (the case put is a prohibitory clause against altering the
succession or contracting debt,) ' even though repeated in these writs,
* is no more than a personal obligement, and will not affect singular
' successors for onerous causes, and that especially now since the act
* 1685, whereby none of these tailzies are effectual against singular
' successors, except such as contain irritant and resolutive clauses.'
Hence, if an entailer prohibit his heirs from contracting debt, or
from selling the estate, and if the heir take the estate under that
provision, and notwithstanding contracts debt or dispones, the cre-
ditor or disponee is safe, because the heir was fiar of the property,
and the provisions of the act 1685, so as to affect third parties, have
not been complied with ; but if the heir attempt to defeat the prohi-
bition by any gratuitous act, the substitute heir under his jus crediti
may set such gratuitous deed aside.
It was held, immediately after the act 1685 passed, (so little was
it then considered that an heir of entail has no other remedy but in
virtue of that act,) that a clause prohibiting the disponee and substi-
tutes from doing any deed which might affect succeeding heirs was,
a sufficient ground for the next heir, or one who on a bond had ad-
judged from him, ' to reduce, on the act 1621, any posterior gratui-
* tous or voluntary deeds not depending on prior onerous causes,
* though it wanted a clause irritant, for that would resolve, irritate,
* annul, and reduce even onerous creditors' debts ;' £• of Callender,
27th January 1687, Fount. This right in the substitute is univer-
sally recognised ; Mackenzie, Vol. II. p. 325 and 487, edit. 1722 ;
Stair, b. ii. tit. 3, § 59, in fine ; Bankton, b. ii. tit. 3, § 139 ; Ersk.
b. iii. tit. 8, § 23 ; Craik against Craik, 29th January 1735. This
was indeed admitted in the pleadings by the pursuers' counsel, and
it appears to be beyond question.
2. To make an entail effectual against third parties, it must be re-
corded in the register of tailzies ; yet an heir of entail cannot found
upon the omission of that solemnity as a defence in any action for'
contravention at the instance of a substitute.. He is bound by the
limitations in the right by which alone he holds the estate, and an
heir-eubstitute has a jus crediti entitling him to enforce the obliga-
tion,'although that provision of the statute has not been complied
430 CASES DECIDED IN THE
with. This point -seems first to hare occurred in the case of Leslie
against Dick of Grange, 15th December 1710, Fount. ; but there
was no room for deciding it there. It was, however, decided in
Willison against Callander of Dorrator, 26th February 1724, Kamea;
also in Hall against Cassie, 17th February 1726, in which it was
found that ' tailzies are good against heirs without registration, but
* not against creditors/ In a question with a widow the Bame has
been found, that irritant and resolutive clauses, and consequently re-
gistration, are unnecessary to make entails effectual intra familiam
of the substitutes ; Gibson against Ker of Hoselaw, 24th November
1795, also reported in Bells Cases, §th June 1795 ; Makgill against
Makgill, 13th June 1798 ; Duchesa of Roxburghe against the Duke,
. 11th January 1820.
3. To make an entail effectual against third parties, it must be re-
corded ; but any substitute heir may apply to the Court of Session to
compel the heir of entail to produce the deed, in order that it maybe
recorded. This arises from the jus crediti which the substitute has
! ' under the entail, although at the same time it is ineffectual, while
not recorded, against creditors or purchasers ; Ersk. b. iii. tit. 8, § 26.
' and 27 ; Naime against Sir T. Nairne, 10th March 1757 ; Ker
against Duke of Roxburghe, 7th July 1804.
4. Where an heir, besides being heir of entail, is also heir of line,
the substitute heirs of entail have a jus crediti to entitle them, and
have an interest to pursue measures for compelling the heir in pos-
session to expede charter and sasine upon the entail, and to possess
under those deeds ; and if they neglect to use this jus crediti, they
will be excluded by prescription'; Macdougal against Macdougal,
10th July 1739 ; Maule against Lord Dalhousie, 1st March 1782.
But it is obvious that the provisions of the act 1685 not having been
yet complied with, the tailzie is ineffectual under that act, so far as
third parties are concerned.
What we have now stated being points of settled law, we are of
opinion that they afford conclusive evidence that an entail, though
not completed under the statute 1685, is nevertheless effectual inter
. - hseredes ; and if so, it is impossible to assign any reason why an en-
tail with a clause prohibitory should not be effectual inter hseredes,
since it is only with a, view to third parties that clauses irritant and
. resolutive were invented, or ever were supposed to be necessary.
And again, if an entail with clauses prohibitory be effectual at all
inter hseredes, and. not absolutely null, or operative only as a simple
destination, it can operate in no other way than by producing an ob-
ligation and jus crediti. No other mode or principle of operation
has ever been assigned ; and, in the present case, the existence of ob-
ligation arising from the prohibition was distinctly admitted by the
counsel for the pursuers — it was a point, indeed, which they could
^ not dispute, although they endeavoured to limit that obligation so
COURT OF SESSION. 431
«s to give it no higher effect than a simple destination, and therefore
to render it not availing against the pursuers' pretensions.
It is true that when an estate is held under an entail, with a pro-
hibitory clause only, or when, from any other cause, the entail has
not the protection of the act 1685, although the jus crediti of the
substitute heir will enable him to defeat any gratuitous deed to the
prejudice of the tailzie, yet as the heirs of entail in possession con-
tinue fiara, if they grant deeds for onerous considerations, these will
be effectual to third parties contracting with them ; for the obliga-
tion against the heirs not to alienate or contract debt is merely per-
sonal, and cannot affect creditors or purchasers, whose rights can
only be affected by an entail under the act 1685. Thence arises the
question, whether, in the case of contravention by an onerjous deed,
the* substitute has any claim against the heir contravening ?
We are of opinion that the jus crediti in the substitute heirs,
which, as to gratuitous deeds, entitles them to set such deeds aside,
gives a claim against the heir or his representatives to have the price
reinvested, if the entailed estate has been sold, contrary to the pro-
hibition of the maker of the entail ; or to have it disencumbered of
debts, if such have been contracted contrary to a prohibition, and it
has been burdened with them.
We find traces of this from as early a period of our law as could
have been looked for, as it does not appear that an entail with a pro-
hibitory clause was much known till about the beginning of the 17th
century ; and the temptation to defeat the provision and the interest
to resist it would probably not emerge for some time, and would
arise only on the existence of an heir of line not being an heir-male,
in whose favour the tailzie was altered ; or in the case of a contrac-
tion of debt where the heir of entail did not also represent the pre-
decessor in any other character.
In the report of the case of Drummond against Drummond, 3d
February 1674, by Gosford, this statement of the law is made : —
* That albeit in tailzies, where there is no clause irritant, the acquirers
' for a just and adequate right cannot be quarrelled ; yet there being
4 an obligeroent in the tailzie, that it shall not be lawful to any of
' the heirs who succeed to annalzie and dispone in prejudice of the
' next person who is substitute in the tailzie, the same furnishes an
' action against the first disponer for damage and interest, and the
* person substitute or his heirs who are prejudged, albeit they cannot
4 succeed to the land, yet they will have a personal action super
* pacto de non alienando against the disponer and his heirs, as is
' clear by Hope in his Compend., where he treats of the nature of
' the tailzies of land/
The point, however, did not occur for decision in that case, and
Gosford accordingly remarks, that the point was not decided.
The annotate* on Stair, who wrote prior to the year 1725, ob-
serves, p. 1 14; — * The next case therefore may be — If tailzies con-
vol. v. 2 E
432 CASES DECIDED IN THE
tain provisions that the heirs shall not ft** nor dispone any of the
lands nor contract debts, nor do deeds whereby *e tailzie may be
frustrate or irritate, and that all such deeds shall be nuH and void,
but contain no irritant clause, of the contravene right in ease these
debts are contracted? There seetns no question hi that case that
the clause not «o alter or contract debts would be valid and effectual
against the contravene* and his other heirs, to subject them to the
reparation of the heirs of tailine s damages by the contravention,
not only from what has already been said, but likewise from the
act 1685, whereby a person may substitute heirs to himself with
what conditions and provisions he pleases.' In the case supposed,
it need scarcely be remarked that the insertion of an irritant clause,
which could not be effectual against the creditor, makes no differ-
ence as to the heir, and could not strengthen the effect of the prohi-
bition.
The point was first interminis decided in the case of Lord Strath-
naver against the Duke of Douglas, 2d February 1728, where there
was a simple prohibition against contracting debt. An heir having
contracted debt, his representatives were found liable to disburden
the entailed estate, on the ground that he was bound to fulfil the
conditions imposed on the grant, -and under which he had accepted
the gift.
Although the judgment in this case contains a finding on another
point of law which has not been followed in subsequent cases, the
point at present under consideration is not connected with that find-
ing, and it, on the contrary, has been confirmed. Accordingly, when
the question again occurred in the case of Cumming Gdrdon of Pit-
lurg, 29th July 1761, the principle established in the case of Strath-
naver was adhered to. There the pursuer brought an action having
two conclusions, for declaring that he had power to sell die estate,
and that he should be at liberty to dispose of the price at his plea-
sure ; and his argument was founded on this, that there were do
words in the prohibitory clause expressly prohibiting sales, and that
it was only from construction that such prohibition was inferred
There was no irritant clause in tbat entail.
The interlocutor of the Lord Ordinary Alentore, 1st July 1761,
applies strictly to both conclusions of the declarator. Mr. Miller,
afterwards Lord President, who wrote the reclaiming petition against
this interlocutor, after laying it down that there is no express pro-
hibition, argues, 1st, That the clause does not imply a constructive
prohibition against sale ; and, 2d, That if it did, such would not be
sufficient to supply the want of express words. He concludes bis
argument in the words which were read by the counsel for the de-
fender, in which this eminent lawyer did not venture to dispute the
conclusion, that if there was a prohibition, the heir of entail on con-
travention was liable in reparation to the substitutes.
This decision was followed by the case of Sutherland against Sin-
COURT 07 SESSION. 433
chin and MBit, flUb February 1801. The eotnil in that case
contained a prohibition again* rsntiacf ing debt, and an irritancy of
the hei^s right on coatraveatwa,^ Here
it is plain that a resolutive clause alone could not make the prohibi-
tory chase stronger than it would hare been without it. Debts
wen contracted by the heir in possession, and the entailed estate
was adjudged and sold by the creditors. The next heir stating it
' as a dear painty that an heir of entail has a dan* against the repre-
' tentative* or separate estate of preceding heira for relief of the da-.
' mage he has sustained through the entailed estate being either
4 totally evicted or knproperly burdened/ brought an action to have
it sound that he was a creditor to the extent nf the price at which
the estate was sold, and that the executors ef the heir should be
liable for the amount. This was found accordingly. The reclaim-
ing petition argues the case fully, but no attempt is made to dispute
the condueiun that reparation is due, if a prahibitioa has been con-
uarened; and the beat of the argument is to show that the prohi-
bition is not applicable, or that the heir is not in a condition to found
upon it.
These cases show past*/ dearly that the law was held to be fixed,
more espedatty as no contrary one can be dted; and we have reason
to believe, that opinions by the most eminent counsel at the Bar
were given in confwaaity therewith, and that the same has been
publidy taught and understood as law in Scotland. It is held by
the late Lnrd Meadewbaalc, m 1815, as a fixed point, in the opinion
delivered by his Leiwrnnp in the case of the Earl of Wetnyss*— Fac
CoILp.274.
The question again occurred in the ease of 8b James Stewart
against Lockharts, 11th June 1811. It was held that under the
prohibitory danse the substitutes had a jus credit! winch could not be
defeated by any voluntary deed; and inrntnlthough a purchaser was
suae, die heir in possession was bound to reinvest the price of the
lends, although knnajbt be avnirwards carried off by onerous credi-
tees; and the report beam, that * the majority held that the point
4 ww already fixed by the decisions.'
The same decision was also given ia the case of the Earl of Bread-
snuemeJagainst Campbell of MoMie, 12th June 1812.
The case of Sir James Stewart, having been carried by appeal to
the House of Lords, was remitted in consequence of doubts enter-
tained of the soundness of the fnrindples on which it had been de-
canted; and although no proceedings have since taken place under
the* semk, these doubts have uaturally called upon us, wish the most
isBSKiote attention, to consider the grounds which induced our prede-
cessors to hold, that under an entail with a prohibitory dause merely,
or where the provisions of the act 1685 have not been followed out,
n> contravention of a prohibition, though effectual to a third party,
2e2
434 CASE8 DECIDED IN THE
juay be made the foundation of a proceeding against the contravener
himself, or his heir or representative.
On considering the objections stated to the view of the law taken
by as, it appears,
- 1. That the act 1685 did not, and was not meant to supersede
every other form of entail, except the strict one which is effectual
against third parties. •
This we think established by the following considerations arising
out of the history of entails in this country.
. The first form of entaDs was that which contained only a simple
destination, and is the only form of entail noticed by Balfour, p. 174.
It could be put an end to at pleasure by the joint will of the su-
perior and vassal. The subsequent heirs bad no more than a spes
successionis.
Attempts were at an early period made to limit the power which
the vassal had, in concurrence with the superior, to defeat the rights
of the substitute heirs. This was first attempted by the liar impos-
ing personal obligations upon himself in mvour of his heir. Of this
two remarkable instances are to be found, one noticed in the Acta
Dom. Concilii, 17th October, 1478, and the other in the Acta Dom.
Audit. 7th June 1493.* Such contracts are also noticed by Dirk-
ton, pages 87 and 198, and instances of such are referred to in the
cases of Sharp against Sharp, 14th January 1631, and Ure against
Crawford, 17th July 1756.
2. Next it was attempted to limit all the subsequent heirs by laying
each in succession under such prohibitions as the entailer thought
proper, as to altering the succession, selling, or contracting debt.
Such clauses were introduced in the time of Craig; but their
had not been tried, and he seems to doubt their efficacy, in the
at least of a feu granted to heirs and assignees, L. ii. D. 5. sect- 7.
But such doubts do not seem well founded. In the words of Lord
j. Karnes, * It is plain that every single heir who accepts the succession
' is bound by the prohibition, so far as he can be bound by bis own
* consent. His very acceptance of the deed, Touched by hia eerv-
* ing heir and taking possession, subjects him to the prohibition, for
' justice permits no man to take benefit by a deed without fulfilling
c the provisions and burdens imposed upon him in the deed.*— Law
Tracts, p. 145. But although the prohibition bound the heir, and
all those who contracted with the heir titulo lucrativo, so that gra-
tuitous deeds were prevented; (against which also, as has been ad-
verted to, the provisions of the act 1621 have been found to be ap-
plicable,) it was insufficient to affect those who contracted onerously
with the beir; so that, with a view to strengthen the effect .of
• Recently printed under authority of tte Commiisieners for printing the Par-
liamentary Records of Scotland.
COURT OF SESSION. 435
clause by publishing it to the world, inhibition wm used upon it,
and by this it was attempted to make it effectual against third parties.
Bat it was found * that there may be many ways by which this pro-
' vision may be frustrated.' — Minor Practics, voce Talkie, sect. 364,
edit. 1726.
3» ' To prevent and remeid this, there is a new form found out,'
says Sir Thomas Hope, who wrote about the year 1635, ' which has
' these two branches, vis. either to make the party contractor of the
* debt to incur the loss or tinsel of his right in favour of the next in
' tailzie, or to declare all deeds done in prejudice of the tailzie by
* bond, contract, or comprising, to be null of the law.' Ibid, sect 367.
The object of these clauses was not to make the prohibitory clause
binding upon the heirs, which was not then doubted, but to make
it effectual against third parties ; and their effect came first to be
tried in the case of Stormont, 1668, when a tailzie with a resolutive
dame was held to be effectual against creditors ; but the doubts en-
tertained of that decision, and the desire to validate entaih against
purchasers and creditors, led to the act 1685, c. 22, by which, if the
conditions and provisions of an entail are affected by clauses irritant
and resolutive in the investiture, and' published in the register of
tailzies, they are declared ' to be real and effectual not only against
* the contraveners and their heirs,' (about which there was not any
dispute,) ' but also against their creditors, comprisers, adjudgers, and
* other singular successors .whatsoever, whether by legal or conven-
* tional titles.'
That the purpose of this act was merely to make entails. effectual
against third parties, Sir George Mackenzie, who is generally sup-
posed to have framed the statute, declares in positive terms ; for after
giving an account of the decision in the case of Stormont, he adds,
' To strengthen these clauses against singular successors, by making
* them more authoritative and better known, there was an act of
* Parliament made anno 1685, whereby such clauses were declared
' valid against singular successors, providing they be set down,' &c
Mackenzie, vol. ii. p. 149. See also at p. 325, eect. 2, 3. And in
like manner Lord Stair, who was Lord President of the Court at
the time, says, 4 By act 22. of Parliament 1685, clauses irritant in
* tailzies are approven as effectual against creditors and singular suc-
* eesaors, being once produced before the Lords and approven by
4 them, and the original tailzie being registered in a separate register
4 for that purpose, and being repeated in all the successive sasines.'
Stavir, b. ii. tit*. 3, sect. 58.
If, from the date of the passing of this act, it. was the meaning of
the Legislature that an entail was to be altogether ineffectual, even
inter hseredes, unless all the requisites of that act were complied wjtb,
Lord Stair could not have failed to have altered, in the edition of his
Ifwtitutes published in 1693, what he had laid down on this subject
in 1681, b. iL tit. 3, sect. 59. Sir George Mackenzie, in like man-
486 CASES DECIDED IN THE
ner, would not have treated of entails in the way be has done, vol.ii.
p. 885 ; nor would Erekme, b. ni. tit. 8, sect. 22, hare classed entails
into three kinds, * when considered with regard to tbeir several de-
' grees of force.' Moreover, this last author subsequently lays down
the law thus : — ' Entails may be in many cases effectual against the
* heir of the grantor, or against the institute who accepts of it, which
* cannot operate against singular successors.' B. iii. tit. 8, sect. 27.
Indeed, H seems quite impossible to dispute the preposition that ob-
ligations under an entail with a prohibitory clause ate effectual
against heire, if it be admitted that h founds a reduction of a gra-
tuitous deed of contravention under the act 1621 ; and this point
must be disputed, and the right to reduce disproved, before effect
can be denied in a question among heirs, to an entail so constructed,
on the ground that it has not been completed under such a form as
will make it effectual also against singular successors.
Nay, in a question with creditors, it urns at one time found by the
Court of Session, ' that the prohibitory and irritant clauses in a per-
' soual right were not effectual against creditors, when not recorded
' in the register of tailzies, on this ground; that the statute 1685
'* was a total settlement of the whole system of entails' in such ques-
tions; ' but the House of Lords put u more limited construction on
* the statute, as only concerning tailzies upon #hkh inmftment had
9 followed,' (Kilkerrau, p. 546,) in the case of Baillie against Stewart
Denbam in 1731 ; and this has been held as law ever since; Credi-
tors of Carleton, 21st November 1753 ; Chisholme, 27th February
1800. So that, in one case at least, an entail will be effectual even
against creditors without the aid of the statute.
II. We do not consider it as a proof that there is no obligation* no
jus crefhti under such a deed, because it has been held that inhibi-
tion cannot be used upon it.
For, 1. that there is a jus credit!, to a certain extent at least, is
unquestionable, otherwise reduction on the act 1621 would not be
competent, for the title to pursue is the being a creditor of At) per-
son whose deed is to be set aside. As already noticed, tbiaieadnftitted.
2. It has also been held that inhibition cannot he used by the) bear
of a marriage to secure the provision contained in the eontnact of
marriage ; Gordon against Sutherland, 3d January 1748, Neither
can any interdict be obtained against anther selling the lands; Cun-
nyngbame, 17th January 1804; and yet it cannot be daunted that
the heir of a marriage has such ejus credhi as will entitle ham mt the
death of the father to the price of the lands settled on him by the
contract, which, as fiar, the rather has it in his power to sell; Cun-
ningham of Bowerhouees, 20th December 1810; E, of Wensmyua,
28th February 1815.
We consider the use of inhibition, in order to enforce a prohibi-
tion against third parties, has been virtually superseded by tbe act
1685, which declares that no tailxie ahau be effectual aeams* third
• COUET OF SESSION. 437
parties except when completed and published in term* of that sta-
tute ; and therefore to attempt to enforce any such obligation against
she heir in possession by inhibition is obviously inept, as it would in
effect be constituting an entail against the person inhibited, as strictly
ae if the prohibitory clause had been fenced by irritant and resolu-
tive clttnsos> and recorded in the register of tailzies. But although
this cannot be dene, it seems impossible from this to infer that no
obligation arises from a prohibitory clause against the heir himself,
because it cannot by using inhibition be made effectual against
onerous creditors.
And upon the same view of the law we conceive was founded the
refusal to grant an interdict against the heir, even when it did appear
that he intended to violate the prohibition, which occurred in the
ease of Sir James Stewart already mentioned. At any rate, it is
certain that that refusal could not have proceeded from an opinion
that the prohibition did not constitute any obligation, since there the
Court found that the heir was bound to reinvest the price.
III. Neither do we think, because the act 1685 puts it in the
power of an entailer to execute a strict entail, by which the prohibi-
tety clause may be effectually fenced against third parties, that if he
dees not take the benefit of this act, the legal effect, which, prior to
that act at least, was consequent on the deed he has executed, is not
now to follow. The heir under a simple destination will unquestion-
ably succeed, if it be not altered ; and an entail with a prohibitory
clause will be effectual, unless where the subject of it has been dis-
poned for an .onerous consideration ; and a gratuitous alteration will
even be voided. But the ipitant and resolutive clauses have no
operative effect in themselves independent of the prohibitory clause,
which is the limiting or restricting clause, while the object of the
other clauses is only to make these limitations and restrictions upon
the heir's right effectual against third parties. That the maker of
an entail has not availed himself of his right to insert irritant and
resolutive clauses, is probably an unintentional omission on his part ;
Vat even supposing it otherwise, this only can be inferred from it,
that he did not mean to prevent onerous transactions, with third par-
ties, leaving their effects, so for as heirs are concerned, entire. That
lie might have tied up his heirs more than he has done, is no reason
why effect should not he given to the restrictions he has imposed.
IV. It is further objected, that the avowed object and intention of
the entailer in the present case was to secure the estate of Asoog to
Ids heirs, and not to entail upon them a sum of money, or a separate
estate purchased with the price of Ascog ; that to reinvest the money
is not fulfilling the intention of the entailer in terms of the deed out
oe? which the obligation is said to arise, and that to infer such an ob-
ligation from the prohibition to sell, is violating the rules of strict
nstruotion, which ought to be applied to entails as restraints upon
488 CASES DECIDED IN THE
The doctrine of strict construction we fully admit, and from this
it arises that no fetters are to be imposed from implication or infer-
ence, or any clause which is usually made use of in creating a limit-
ation supplied, although the omission be obviously through inadvert-
ence,- and by mistake. But when limitations, after applying the
doctrine of strict interpretation, are found to exist, these limitations
are to be construed according to the usual and legal import of the
words, and according to the meaning affixed to them by the entailer.
Upon this ground were decided the case of the competition for the
estate of Cumbernauld, 19th January 1804 ; the case of the Rox-
burgbe feus, 1 1th January 1808 ; and ibe cases of the Queensberry,
21st February 1816— Turnerhall, 6th December 1811— -and Stobbs
leases, 10th March 1814,— all of which, except the first, hare also
been decided in the Oetirt of the last resort. Now it appears to
us, that as the prohibition to sell in the present case is the declared
will of the entailer, although he has not fully and absolutely provided
for specific implement by using the statutory means, whence it arises
that onerous sales must be effectual, still we do not see why the
legal consequence of contravening such a prohibition, according to
the solemn deteminatidn of the Court, just two yean before the pre-
sent entail was made, which was in 1763, should not hare effect.
Hence to make the heir reinvest the price, is not implying any con-
dition or restriction not imposed by the deed ; on the contrary, it is
giving legal effect to tl*e prohibition contained in the dead*
The same takes place' on the breach of the obligation for settling
the estate on the heir of a marriage : if it be sold by the father for
an onerous consideration, the sale is good ; but if any part of tbe
price remain unspent at his death, the heir is entitled to it, although
he by this does not get specific implement of the obligation, namely,
the, estate.
V. Even although it should be held that an heir succeeding ander
an entail with all the clauses pointed out in the act 1685, and duly
recorded in terms of that act, can do no more than irritate deeds in
contravention of the entail, and has no claim for damages or repara-
tion, (upon which we offer no opinion, as the case is not before us,)
it would not affect the present question. For if an entail with pro-
hibitory clauses merely raises an obligation against the heir, although
it be ineffectual against third parties, that the entailer might
have imposed upon his heir a prohibition with a different mode
of enforcing it, does not seem to us to alter or impair the right which
arises out of the prohibition as it stands. Besides, the refusal of
damages for an attempt to alienate, when the alienation is not ef-
fectual, but void as ultra vires, and the refusal to give redress for
an alienation actually made and effectual, though done contrary to
an . obligation in favour of the heir, seem to rest on very different
grounds ; and hence the decision given by the House of Lords in the
case of the Queensberry leases, 10th March 1824, does not affect the
COURT OF SESSION. 439
views we entertain. For the present question neither did nor could
arise there ; that being the case of an heir who, under the statute
1685, had set aside the deeds of contravention, and where what he
claimed was damage suffered by himself individually, which, if due,
was due solely to himself, and was not to be reinvested for the benefit
of , the subsequent bona ; and it arose, because, either from his delay in
bringing the action, or from the necessary procedure for setting aside
the deeds of contravention, damage beyond what the remedy under
the statute would repair was said to have arisen to him individually. .
We are therefore, upon the whole, of opinion, that while the sale
must be effectual to the purchaser, because the prohibition to sett
has not been guarded in terms of the act 1685, yet, as the entailer
declared that the heirs should ' not have any power or liberty to
' sell,' the pursuer has done what he had no right to do, (in the
same manner as one who grants double rights does, yet the diaponee
last in date, if first infeft, will be secure,) and must therefore be liable
in reparation to the extent of the price obtained for the lands sold ;
and that the security for this price must be taken to the heirs of en-
tail in succession, in terms of the entail of Ascog*
Lords President, Hermand, Craioie, and Balgray, concurred
in the above opinion*
Load Cringlstik delivered this opinion :— By the entail of Ascog
and others, executed by John Stewart of Ascog, afterwards John
Murray of Blackbarony* dated 28th May 1763, he conveyed to his
heirs the lands of Longcoat, Borland, Milkingston, Windylaws and
others, in the shire of Peebles; and, with regard to selling, the deed
contains this clause: * Nor shall they have any power or liberty
' to sell, annailzie, or wadset the lands an<l others foresaid, or any
' part thereof except allenarly such a part and portion of the same
' as shall be found necessary for relieving, paying, and satisfying
' the debts and obligements contracted and granted by me/ &c
This declaration of want of power to sell (for it is not(a prohibition
in direct words) is not protected by any sanction of an irritant
and resolutive clause applicable to it, so that the faculty of selling
or. not rests solely on this clause, that the heirs shall not have power
to do so ; whereas the other conditions and provisions of the entail
are enforced by irritant and resolutive clauses, annulling the deeds
done in contravention, and forfeiting the right of the heir. Mr. Mur-
ray, moreover, conveyed to his heirs of entail ' all and sundry lands,
' heritages, annual rente, tenements, or .houses within burgh, tacks,
* steadings, rooms, possessions, and all other heritable subjects what*
' aoraever, belonging to me in any manner of way at my death, and
' all other heritable and moveable means and effects whatsoever, per-
* taitting and belonging to me undisposed on at the time foresaid of
* my decease, and -all bonds, bills,' &c This conveyance of the whole
estate, other than the entailed lands, was under this condition, that
the disponees ' are and shall be holden and obliged in the strictest
440 CASKS DECIDED IN THE
« manner, by their acceptance hereof to convert the said heritable
« and moveable subjects, generally above disponed, into money, and
« to uplift tile debts and sums of money above assigned ; and after
' payment of my proper debts and the legacies, if any be, to ware,
' employ, and bestow tbe free residue or remainder, mo. on pur-
* chasing of land in Scotland, and to take tbe rights and securities
* of the lands so to be purchased in the form of a strict entail, to the
* same series of heirs, and with and under the same conditions, pro-
• * visions, burdens, reservations, restrictions, limitations, clauses irri-
' tant, and faculties, as are above set down with respect to my tail-
« zied lands herein mentioned,' &c Accordingly, the lands of Drum-
fen and others were purchased and settled on the same series of
heirs, under the same system of taihrie as those originally entailed
by Mr, Murray himself, so that the obligation imposed on tbe heirs
has been fulfilled. But the lands being entailed, in terms similar to
those applicable to Aseog, they are equally liable to be sold.
The present heir, Mr. Campbell Stewart, has sold the lands in
Peebles-shire; and the question now at issue is, whether he is bound
or not to re-employ the price of them in the purchase of other lands,
to bo entailed in the same terms as those contained in the original
tailzie ? The subsequent heirs plead that he is bound, while Mr.
Stewart says that he is entitled to dispose of the money as ho thinks
proper.
The ground on which tbe heirs proceed is, that the declaration of
the want of power to sell, which I shall call a prohibition, constitutes
a claim of damages or reparation against the heir who acts in con-
travention of the terms under which he holds the estate ; and these
damages are the value obtained for it, which becomes a eurrogatum
to he re-employed in the acquisition of ether lands. This appears
to me to be a total mistake, arising from converting tbe simple pro-
hibition, or want of power to sell; into a declaration, that in ease any
of the heirs should sell, he should be obliged to lay out the price in
purchasing other lands, which, in my apprehension, is contrary to all
the rules which have hitherto been applied to the construction of taQ-
ajes, one of which, and tbe great and leading one, is, mat no obliga-
tion is to be imposed on the right of property by implication. In a
question at present before the Court between the Duke of Gordon
and John Innes, Esq. tbe opinions of the Judges of the Second Di-
vision on a different point* are printed ; and there .it was distinctly
laid down, * That all presumptions, drawn from implied intention,
« are to be rejected ; Sdry, That fetters are not to be raised on infer-
4 ences, nor extended by analogy, from cases expressed to oases not
' expressed, however similar; and, lastly, That no effect is to be
' given to intention, unless expressed in clear terms.' The prohibi-
tion is therefore effectual to prevent a sale, or it- can have no force
at all. If one obligation can be inferred from a broach of it, why
may not another? Why shall the construction not be that the heir
COURT OF SESSION. 441
fas* forfeited altogether ? ilini Msathsg to be the intention of the en-
tailer, hi so Jar ar relates to the contravention of the other conditions
of hie tttkie. It is admitted on all hands, that a simple prohibition
to seR or annalsie does not form any obstacle to a sale to an onerous
purchaser ; but an idea has found its way into the attnds of lawyers,
that there is a distinction between the public and the heirs of en-
tail ; so that afehough the public may buy without conuaitting a
wrong, an heir isguiky of it by making the sale. With the greatest
deference this appears to me to be a radical mistake, proved to be
so by the statute 1685, c. 98, itself. Such are considered to be
the powers of a proprietor by the law of Scotland oyer his property,
that his deeds roust remain effectual against it as long as he conti-
nues to be the proprietor ; and therefore before any of has deeds re*
gardmg it can be set aside, there mast both be a clause irritating or
▼aiding tbe deed, and a resolutive clause, whereby has own right
must also be forfeited by having done that deed. Nor as there the
smallest shade of difference between these deeds with respect to
heirs and the, public. It is indeed laid down by our authors, that
a gratuitous alienation in contravention of a prohibition may be set
aside on die act 1621. I wiR net controvert this, although I think
that it has arisen from old ideas of law entertained before the date of
1686, <v 23, continued down, without attending to tbe alteration in-
troduced by that statute ; and, 2dry, That in the cases to which the
statute has been found to apply, the prohibition to sell was consti-
tuted in tbe form of an obligation on the heir of the estate not to do
it, whereby tbe succeeding heirs were considered to be creditors of
him in possession. But surely if this be true, or indeed whether or
not, it is admitted on all hands that due statute 1621 applies entirely
to the protection of onerous creditors, for setting aside gratuitous
alienations to their prejudice, and consequently does not apply to an
alienation for onerous causes ; and it leads to this great conclusion
in this question, that there was no ground on common law for set-
ting aside even a gratuitous alienation to tbe prejudice of creditors,
when it required the intervention of the act 1621 to operate that
effect. Accordingly, it is not so much as insinuated by Mr. Erskine,
that there is any ground at common law for setting aside a gratui-
tous alienation, and for less for reducing a sale. On die contrary,
he says that die heirs may burden the lands, or alienate them for
onerous causes. He then alludes to the opinion of older authors
that inhibition aright be used on entails, which he controverts, and
adds — * For restraints are not to be multiplied by implication, and
« inhibition is ineffectual where the person inhibited is not laid under
' some prior obligation, which may be the foundation of the dili-
* gence.* Here then is a passage certainly implying that a prohibi-
tion to alienate contains no restraint on the heir to seH, and consti-
tutes no obligation of any sort against him. How then can there be
any difference between heirs and the public ? I cannot discover any,
442 CASES DECIDED IN THE
except in the case of a gratuitous alienation, which, it is said, may
foe set aside on the act 1621. By common law the consent of the
superior was necessary to make an entail ; and it is expressly laid
down by Lord Stair, that by the consent of the superior and vassal,
an entail could be evacuated at pleasure. It is therefore no way
probable that in passing the act 1621, c 18, the Legislature had the
matter of tailzies in any way in their contemplation ; and, in my
humble opinion, anyone who reads that statute must be satisfied
that it had no such thing in view. 1 admit, however, that it has
been applied to the reduction of gratuitous alienations in contraven-
tion of a prohibition to alienate, constituted in the form of an obliga-
tion not to do so ; and allowing this to be sound law, which, with
great deference, 1 doubt, there is no reason for extending to an oner-
ous sale dubious principles applying only to a gratuitous alienation.
The predicament in which the estate is placed by the latter is toto
omlo different from the former. The estate itself is rescued from
the gratuitous disponee, and the intention of the entailer is continued
in execution. But by the sale his estate is carried off for ever to
strangers, aad all his views are defeated. >
But 1 have shown that, by our old common law, there is no dif-
ference with respect to the right of the public and that of the heirs
of entail ; and that to set aside a gratuitous alienation, in contraven-
tion of a prohibition to sell, required the force of the statute 1621.
But whatever were the old ideas of the power of entailers and the
force of their tailzies, I imagine that it must- be conceded by all,
that these are and have been all regulated by the statute 1685, a 22.
That act appears to me to proceed on this great principle, that it
was possible to affect the public through the medium only of. the
heirs of tailzie ; aad consequently it was thought necessary to place
both on the same footing, except in one single insulated case. It
declares that it shall be lawful to his Majesty's subjects to tailzie
their land and estates, and to substitute heirs in their tailzies, with
such provisions and conditions as they shall think fit, and to affect
the said tailzies with irritant and resolutive clauses, whereby it shall
not be lawful to the heirs of tailzie to sell, aanakne, or dispone the
eaid lands or any part thereof, &c ; declaring all such deeds to be
in themselves null and void, and that the next heir of tailzie may,
immediately upon contravention, pursue declarators, aad serve him-
-. self heir, &c.
Now, it will be observed, that in this clause there is not the least
notice of or reference to the public It is directed exclusively to
the heirs of entail, and the mode is specifically prescribed how they
'are to be restrained. The entailer may impose what conditions he
pleases on them, but he must add irritant and resolutive clauses,
whereby it shall not be lawful to the heirs to sell, &&; and if he do
not add these irritant and resolutive clauses, surely the conclusiaa is,
that it shall be lawful to sell, &c.
COURT OF SESSION. 440
But the statute proceed* to declare, that such' tailzies (viz. such
as restrain the heir, for hitherto heirs only are mentioned) * shall he
' allowed, in which the foresaid irritant and resolutive clauses are in-
' sert in the procuratories of resignation, charters, precepts, and in-
4 strumenta of saaine, and the original tailzie once produced before
' the Lords of Session judicially, who are hereby ordained to inter-
' pone their authority thereto, and that a record be made in a parti-
' cular register-book, &c ; and which provisions and irritant clauses
c shall be repeated in all the subsequent conveyances of the said tail-
* zied estate to any of the heira of tailzie.' Observe what follows, —
* And being so insert, bis Majesty, with advice and consent foresaid,
' declares the same to be real and effectual, not only against the
' contrsveners and their heirs, but.abo against their creditors* com-
' prises*, adjudgers, and other singular succesoon whatsoever/.
Here then it is expressly declared, 1st, That there must be irritant
and resolutive clauses to affect the heirs ; 2d, That these must be insert
in all the conveyances and tranainjasiox* of the estate ; and, 3d, That
the tailzie must be recorded in the register of tailzies, all which is
necessary to make it eflsctual against the heirs and the public There
is no distinction between the two, as is .proved beyond dispute by
the immediately following clause of the statute relative to heira alone :
( It is always hereby declared, that if the said provisions and irri-
' tant Hinges shall not be repeated in, the rights and conveyances,
' whereby any of the heira of tailzie shall, brook or enjoy the tailzied
' estate, such omission shall import a contravention of the irritant
' and resolutive clauses against the person and bis heira who. shall
' omit to insert the same, whereby the said estate shall ipso facto
' fell, aceresce, and be devolved to the next heir of tailzie, but shall
' not militate against creditors and other singular successors who
' shall happen i to have contracted bona fide with the person who
* stood infisft in the said estate, without the. said irritant and resolu-
' tive clauses in the body of his right.' Here there is a distinction
laid down between the heirs and the public in one single case, which
in my opinion, proves incontrovertibly, that in other particulars the
statute applied to both indiscriminately ; and the consequence of this
is plain, that if an entailer do not choose to observe the mode pointed
out to him by the statute, he has not taken the proper method to
restrain the right of property in his heirs, who are therefore as free
as is the public To say that he has a right to prohibit his heirs to
sell, and that if they do contravene that prohibition, they are liable
lor damages, which are, to lay out the price on another estate, is
just to repeal the statute, and to make* an entail effectual against an
heir, although there be no irritant and resolutive clauses applicable
to a sale, — to make it not lawful for the heir to sell, by the mere
force of a prohibitory clause, when the statute enacts, that to make
it not lawful,. the prohibition must be affected by irritant. and resolu-
tive clauses. It is to enable the entailer to entail money, viz. the
444 ' CASES DECIDED IN THE
prioe» when he ana not entailed the land. It appear* to me that the
only possible ground en wbieb a prohibition te sell can he converted
into ea obligation to re-employ the price obtained by a sale, is, that
equity demands that the person who takes an estate voder a prohi-
bition to «U, ought not to be allowed to violate it with impunity.
Bat I entirely concur with what was observed by the Lord Chancel-
lor on the case of Westshidd, that there is no equity in restraints on
the use of property « and I consider this observation to be proved by
the statute 1685, which readers certain forms necessary in order to
restrain effectually heirs to estates from aUenatmg them* If the
Legislature had thought that there was any equity in enforcing re-
straints, they would have either not passed that act, or declared
that a prohibition to sell, or contract debt, or aiieneto, aheuld be
efectud both against the heirs and the atihnc. Bat, as is already
said, such an enactment was neither consonant to pandpfes of law
or Ae ideas of the Legislature. A case was put, at the pleading of
this -case, by the pursuer. It was supposed that an entail contained
a prohibition to the hews to sell or alienate the whole ot any part,
and also contained a resolutive clause applicable *o this ptolnbition,
but no irritant dame. The new was supposed to make a partial
sale, which could net be net aside on account of these being no irri-
tant clause; but, in consequence of the partial sale, the heir's right
to the remainmg part unsold was forfeited; and it was contended
that he could not be called oo to refund or reemploy the price of
the part sold. This concession by the pureaer (via. that the heir
could be forfeited for contsnventioa, in virtue of the nosohitrae dauoe,
when there was no irritant one) was laid bold of by the defender,
, who replied, that if the •contravener could be forfeited for having
made a partial sale, the same oonsequence would follow if he had
sold the whole; but, as she subject could not he recalled from an
onerous purchaser, the consequence must be, that die heir must be
found liable for the whole price, because otherwise this result would
ensue, that the heir would be punished for a partial contravention,
by forfeiting his right to the romainiag part of the estate, srhereas,
if he sold the whole, he could not be liable in any way to the suc-
ceeding hens. To solve this difficulty, I am of opinion that the
concession was a mistake in law, via. that the heir could be forfeited
for the partial sale, while at same time it remained Actual.
The act 1685 makes k necessary to nave both an irritant and re-
solutive daase, in order to affect the heir, and make k not lawful
for him to sell ; and accordingly it has been derided in this Court,
and in the House of Lords, that an irritant clause withoaa a veaolu-
ttve, and, per contra, a resolutive clause without an irritant, are each
ineffectual to rostrum an heir of tailzie from selling. This waa ar-
gued by the Court in the «ase Gardner a. Hairs of Entail of Duni-
pace, reported by Lord Kiikeraaa, p. £40, No. 4. And £ the more
particularly refer to this case, because akbeugb, for want of an irri-
COURT OF SESSION. 445
tint cMiwe, tin dotal were found to ufleet die estate* no una was
node of the resolutive clause to forfeit Ae heir ; nor does there ap-
pear on record a single instance, op far aa I know, in which an heir
has been forfeited in virtue of a resolutive danse, when the tailzie
waa defective in one hiihiiaa, his deeds. In the ease of Duaipaee,
Lord KaUtenan detaile #je doohta and subtleties that had existed
among lawyers relative to irritant and resolutive clauses. He says
tint no man eTor doubted the necessity of a resolutive clause, 'while
4 our lawyers were not agreed that an irritancy of the debt waa ne-
* cense ry where the eentravener'e right was irritated.' Thua it was
not agreed aaneng lawyers whether in irritant and resolutive clause
were both necessary ; and Lord Kilkerran continues)—-' And though
4 the statute has no retrospect^ it has always been considered aa set-
'ttingthe several subtleties about which lawyers bad been so much
' divided* and particularly the hnport and effect of irritant and reso-
4 hrttva casuses,' && The statute then settled these subtleties, and
it declares that it shall be lawful to tailzie, with such conditions and
previsions as the entailer shall think fit, ' and to afloat the said tail-
4 niee with irritant and resolutive clauses, whereby it shall not be
* lawful to the heirs of tailaie to sett, smeitrie» fee. ; declaring all
4 such deeds to be in themselves null and void, and that the next heir
4 of taihrie may, hnemdiasely upon contravention, pursue declarators,
4 and serve himself heir*' Both clauses are therefore necessary, —
the one to set aside the deed of contravention, and the other the
right of tbeceettrnvener ; far if the deed be not voided, the succeed-
ing heir cannot pursue declarators, and serve himself heir. I there-
fore conclude, that if a tailzie do not contain an irritant clause, the
resolutive wiH toe inoperative, as much as an irritant clause is with-
out the resolutive ; and consequently no argument can bear on this
cause which proceeds on a contrary supposition. In my bumble opi-
nion, an entailer who peofaifaits his heirs from selling, and who does
not make that effectual by irritant and resolutive clauses, must be
understood to say, I prohibit you from selling, which is declaring my
wish that ynu shall retain my estate ; but if it so happen that you do
not find it convenient to comply with nry desire, I cannot help it ; I
do not choose to restrain ynu*
It is pleaded by the defenders, that the prohibition is only per-
sonal against the heir ; but I apprehend this to be a mistake. The
prohibition is entered in the mfefanent, and thereby must be a real
burden on the heir, if it be validly constituted. But my opinion is,
that it is neither real nor personal agamst the bear tnore than against
the public, because it is not validly constituted by law. There are,
therefore, two mistakes ; — one in assuming that the prohibition is ef-
fectual against the heir, though not against the public; and, 0dly,
assuming that the contravention forms an obligation on the heir to
make reparation. Nothing can mom distinctly prove that a prohi-
bition forms noperaonal obligation upon an heir than the fact now
446 CASES DECIDED IN THE
universally admitted, that an inhibition oaed against him has no effect
whatever, although the contrary seems to have been understood in
the days of Lord Stair, and even Lord Elchies. A very ingenious
attempt was. made by the counsel for Mr* Fullerton to show that the
reason why an inhibition is not competent on an entail is, that inhi-
bition is only effectual to enforce or secure implement of an obliga-
tion to do or pay something, whereas here there is only a prohibition
to do. But this appears %o me just. to prove, that even in a question
inter hnredes there is no obligation constituted by the' prohibition.
There is only one way appointed by the statute whereby it shall not
be lawful to the heirs of tailzie to sell, and if that way be not adopt-
ed, the conclusion surely follows that it remains lawful to them to
sell ; and if it be lawful, I cannot, by any process of reasoning of
which I am capable, arrive at the conclusion that they are under an
obligation not to sell, and are liable for damages for doing what is
lawful to be done ; whereas if there were an obligation, it would se-
cure the performance of it, and prevent the public from aiding to
commit die breach. The mistake under which, these old lawyers
lay with regard to the effects of an inhibition accounts for their opi-
nions on talkies containing a prohibition to sell or alter, &c They
held the prohibition to be coverable by an inhibition ; but that being
a mistake, it follows that the prohibition constitutes no obligation.
It is just a prohibition, and nothing more ; and if not made effectual
by irritant and resolutive clauses, it has no effect whatever on heirs
more than singular successors. It was said by the defenders' coun-
sel, that an inhibition is not effectual in the case of an entail, because
the estate is protected by a statutory immunity, arising out of the
act 1685. But this is giving in other words the reason which I have
already offered. For what is the immunity ? Nothing else than this,
that if an estate be not entailed in terms of the statute 1685, the
entail cannot be propped by an inhibition. It is saying, that a pro-
hibition to sell forms no obligation upon the heirs ; because, if it con-
stituted an obligation, the inhibition would be as effectual to prevent
a sale to the injury -of the succeeding heirs, as an inhibition is against
the proprietor of an unentailed estate selling it to the defeasance of
the right of a creditor by bond or minute of sale. The principle
therefore is, that a prohibition is a mete restraint, and does not con-
stitute any obligation whatever, either in law or equity.
Another strong proof to roe that the public and an heir are in the
same situation, and that the former can be affected only through the
latter, is, that the public and the possessor of an unentailed estate are
placed in. the self-same situation by law. If an inhibition be not duly
executed against both, it can have no effect. Its object is, to secure
the landed property of a debtor to his creditor. If the inhibition be
not duly executed, the debtor may sell his estate, and the creditor
can have no redress. 'An arrestment may be used to secure the
price; but the inhibition atone will have no effect. Hie same hap-
COURT OF SESSION. 447
pen* if die inhibition, though duly executed, be not recorded within
forty days after its execution. The statute 1581, c 119, declare*
1 that na interdiction or inhibition to be raised and executed here-
4 after, be of force, strength, or effect, to onie intention ; bot the
* flamen to be null and of nana andl, except the samen be duly re-
' gistrat, as said is.' In the same spirit the act 1685 gave power to
the Keges to tailzie their lands and heritages, and to affect the same
with clauses irritant and resolutive, whereby it shall not be lawful
to- the heirs of tailzie to sell, alienate, Ac If the lieges do not
choose to affect their tailzies with irritant and resolutive clauses, no
other conclusion can follow, than that it remains lawful to the heirs
to seD, &c - • •
It has been endeavoured to assimilate a prohibition to sell, to the
obligation constituted by a man providing his estate to his children
by an antenuptial contract of marriage, to make that estate or its
value forthcoming to them. But to me there does not appear to be
the least analogy between the two. The intention is to provide the
children, not with this or that estate, but to make a provision for
them to the extent of the estate alluded to in the contract. The
father is left in the fullest power of administration, in the exercise of
which he is understood to act tanquam bonus vir, having always in
view the intended object of providing for his children, and may there-
fore sell the estate, or keep it, as he thinks most conducive to the pro-
posed end ; and it even admits a greater license, for be may provide
for a second wife and family. It is a contract uberrima fidei, a fa-
vourite of the law* It contains no prohibition upon the husband to
manage as he thinks proper ; bot it contains an obligation upon him
to provide for his family, receiving the most liberal interpretation,
and the utmost support ; whereas an entail is strictissimi juris; to-
lerated by the law under certain conditions. It is a deed wherein
the grantor has respect to one estate, and that alone. All his cares
and anxieties bear reference to it. His hews are to be of that estate,
to bear the name and arms of him and that estate, which is to be
transmitted to his heirs in tempore future If, therefore, the estate
be disposed of, his object is frustrated ; and he can never be presumed
to intend that his heirs shall sell and acquire other estates, repeating
such procedure two or three times in a year. The principle is ab-
surd, and the consequences of it expose it to be so. For, only to men-
tion one of them,— I would wish tq know who is to determine what
lands are to be bought, or how the money is to be laid out in the
mean time, or whether lands are to be bought in Scotland or England,
4>r in any other part of his Majesty 's dominions ? In further illustra-
tion of the distinction of the principles^ law which I have laid down,
I refer to the case of an heir of entail not recording the tailzie. All
authorities are agreed that if it be not recorded, all his deeds will
mffect the estate. Thus he and the public, in the first instance, are
mm. the same footing. Both are free to act Kit the heir who left
VOL. T. ?F
448 CASES DECIDED IN THE
the tailzie unrecorded, and contravened its prohibitions, would be
liable for damages, if there were in it, a> tbere coinmonly is, an obli-
gation to record the tailzie, because there would be a direct breach
of an explicit obligation, which be could be compelled by an action
of law to implement ; whereas, it is decided, that by any action he
cannot be prevented or interdicted frona contravening a prohibition,
if got fenced by an irritant and resolutive clause. If in the taibde
tbere was no obligation lajd on htm tq record the tailzie, be might
leave it unrecorded, and be liable to no damages for doing so.
One other consideration strikes me as highly illustrative of my
opinion, and proves that in law no claim fox danjeges arises out of
the contravention of a prohibition. In the Queensberry entail, there
was a prohibition to alienate under an irritant and resolutive clause,
&e. ; and the late Duke of Queensberry let teas** for which he took
large grassums. It is well known that these leases were considered
$o be alienations struck at by the tail&e, and were set aside, in con-
sequence of which the Puke of BuccWucb raised action*, in which
be claimed from the executors of the. Dtfke of Queensberry violeat
profits or damages Irons the (Jateof the death, of the latter ; and this
he grounded on the principle that his Grace, by granting such leases,
had contravened the prohibition, in the teibne, and thereby deprived
the Duke ofRuccleuch from drawing the true rente of the forms,
which otherwise he would have done. But tbie Court and the House
of Lord* both declared thai no such claim arose out of the violation
of the tailzie.
The leases were set aside, and that was all thefe&ees that could
be obtained. It has been said that there was. aft initau* and resolu-
tive clause applicable to the tacks, and by these the Duke of £uc-
cleuch might have had his redress, and therefore, waa not entitled to
any other. But this is just saying that the prohibition to alienate,
which was judged to apply to. these leases, was protected by a sanc-
tion ; and from, that it surely follows, that, if these be no sanction
imposed by the entailer, when he had it in hie power to. add one, the
Court is not entitled to add one for hint* Would it net bean aston-
ishing proposition, that the Duke of Buedeuck would have been
better off if there had been, no irritant and nesokitivn clauses, than
he was with them ? If there had been, none, the leases wopldhave
subsisted, and his Grace would have, obtained' daaisgenj if the argu-
ment of the defenders be solid ; but, by having k in bis powee to
set aside the leases, he got none. By the. entail being; effectual, he
was in a worse condition than if it had been defective. But can any
man possibly say, that although there were irritant and resolutive
clauses, there was not also a prohibition, which was violated? And
as it is. from that violation that the claim for **— "■g™ arises, it ap-
pears illogical to maintain, that, because an additional sanction is in-
troduced, that the other, said to be founded in common law, is lost.
I sin therefore humbly of opinion, that the ease of the Duke of
COURT OP SESSION. 449
doedeftth against the Executors of the Duke of Queensberry is a
case directly lit point, and settles that the contravention of a prohi-
bitory clause in an entail does not constitute an£ claim of damages
against the contravener.
But it was also argued, that the doctrine of surrogatum applied to
this case; because, since the heirs, after the pursuers, would have
had right to the estate if he had not sold it, they are entitled to the
price as coming in place thereof. To me this doctrine does not seem
to apply.— Surrogatum takes place only where the absolute property
is tested in the person who claims the subject that comes in its
place. For instance, when an heiress of a landed estate marries,
without conveying her estate to her husband, the right to the rents
only belongs to him, while the property of the subject itself remains
with her. If they find it convenient to seS the estate, she must con-
cm* in the conveyance ; and of course the price coming in place of
the subject itself belongs to the wife, as a surrogatum for the land
which was hen. The same principle applies to all the other cases
collected under the word Surrogatum— the actual right of property
must have been in the person, or his heirs, who claim the surroga-
tum. But here the heirs of Blackbarony had no right of property
in fu They had nothing more than a' spes successionis, defeasible
at the will of the pursuer ; so that, with much deference, I am clearly
of opinion that the doctrine of surrogatum does not apply to this case.
ft must be solely on converting the prohibition to sell into an obli-
gation to re-employ the price, that the defender can have a chance
of success ; and I consider that I have distinctly proved that no such
obfigatkm can be inferred, either m law or equity.
Various autnorities were referred to by the counsel for Mr. Ful-
forton, which I do not mean to investigate : 1st, Because I know
tbat some of my brethren, who concur with me in opinion, will do
so ; and, 2dly, Because I know that in the case of Westshiells, part
of which estate was sold in contravention of a prohibition, the Se-
cond Division found Sir Jatnes Stewart liable to re-employ the price.
On an appeal, the Lord Chancellor was of opinion that there was no
precedent applicable to the case, and remitted to* the Second Divi-
sion to reconsider it ; which their Lordships will probably never be
required to do, as it has been at rest for more tnan ten years. I will
only remark, tnat the case principally relied* on by the defender is
ifcfet of Cuming of Pftlurg tv Gordon, 29th July 1761, in which the
Court indirectly found that the heir of entail was not entitled to sell
tiho estate, and gave as a reason for doing so, thai £f he did, he would
be liable to re-employ the jnice. The Court so far altered this judg-
ment by the case of Westshiells, wherein it' was found that Sir James
Stewart was entitled to* sell the estate, although they also found him
liable to re-employ the price ; and as for the reason assigned by the
Court in thfe case of Ktlurg, the question was not before it, either
in die swnmonr or the argument, sd that it must properly be con-
2p 2
450 CASES DECIDED IN THE
. sidered as obiter dictum ; and, on these grounds, I consider it to be no
way wonderfbl that the Lord Chancellor held it to be no, precedent.
I would add, that the clause conveying the heritable and personal
estate belonging to John Murray to his heirs, and taking them bound
to convert it into money to be laid out in purchasing land, shows the
difference between an obligation and a prohibition ; and it would be
. strange to construe in the same way clauses totally different in their
object and expression.
Perhaps it may be true that John Murray intended to direct his
irritant and resolutive clauses against a sale ; but there is no cer-
tainty whether he did or not. In law, his meaning must be col-
lected from his words. He only prohibited his heirs from selling
more land than was necessary to pay his debts. They were there-
fore at liberty to sell if it was necessary, and he must have seen that
they might sell more than was requisite ; yet he did not, even in
that case, impose any obligation on them to lay out the surplus on
land to be entailed. And 1 am of opinion, that as he did not con-
stitute his prohibition in the form required by the statute to bind
his heirs, it was lawful for them to use their right of property ; and
as he imposed no obligation on them in case of sale to re-employ the
money for behoof of his heirs of tailzie, the defender, Mr. Stewart,
cannot be liable for damages or reparation for exercising what was
lawful for him to do ; for I consider it to be a solecism in law or in
reason, that any man shall be liable in damages for doing that from
which the law cannot restrain him.
Lords Alloway and Eldin delivered this opinion : — This entail
being defective in the irritant and resolutive clauses, is not sufficient
to prevent the proprietor from selling the entailed estate. Accord-
ingly, he has sold a part of it, and the purchaser having suspended
payment of the price, the case has been brought before the First
Division of the Court by suspension at the purchaser's instance,
and declarator at the proprietor's instance, against the heirs of en-
tail, concluding that he had right to sell, and the lands being sold,
that he has right to the price as his own money. Under these cir-
cumstances, the question is, Whether the proprietor's claim to the
price is well or ill founded ?
We are of opinion that the pursuer had power by the entail to sell
the lands in question, and the lands being sold, that he has right to
• the price as his own money, without being liable to any claim what-
ever on account of the sale.
It is well known, that before the use of entails in Scotland, with
irritant and resolutive clauses, all proprietors of land had power, with
consent of the superior, to alienate their estates ; and, when the des-
tination in the charter was so expressed as to transmit the bods,
upon the death of the proprietor,. to an heir, or a series of heirs, the
heir who succeeded had power, with consent of the superior, to make
a different destination, and, even without the superior's consent, to
COURT OF SESSION. 451
•her the investiture of the lends by mesne of adjudication, a process
which the superior could not oppose.
But not long after the beginning of the 17th century, various de-
vices were contrived by lawyers, intended for the purpose of impos-
ing such fetters upon the landed proprietors as to prevent them' from
alienating or burdening their estates. We are of opinion that such
contrivances were altogether nugatory, till the act 1685 was passed,
of which afterwards. It cannot be questioned that the act is com-
pulsory, but at common law there is no valid entail, and no such en-
tail can be contrived. •
Prohibitory clauses were the first restrictions attempted against
the heirs of investitures ; but they were not sufficient to prevent the
proprietor from altering the entail. For he never was without power,
in virtue of the right of property, to alienate the lands, or contract
debt ; and in either case the prohibitions were ineffectual, because
no prohibition could prevent a creditor or purchaser from carrying
off the lands by his diligence. Nor was the proprietor bound by
the prohibitions. A prohibition did not bind him to re-employ the
price if the lands were sold, nor to redeem if they were apprized
or adjudged.
Thus it appears that the prohibitory clauses were altogether nuga-
tory, unless they were enforced by inhibition, a diligence which was
in use for a long period. But, for the purpose of securing an entail,
it is now exploded, and the prohibitory clauses give no disturbance
to the proprietor in his selling or contracting debt, because they can-
not be enforced by inhibition. See die cases of Bryson against Chap-
man and Barry, 22d January 1760 — Lord Ankerville against Sanders,
&c 8th August 1787 — and Lockhart- against Stewart, 11th June
1811, in all which inhibition or interdict was refused.
It does not appear that at any time clauses in an entail, when
they were merely of a prohibitory nature, and were not enforced by
diligence, operated as an effectual restraint upon the proprietors of
estates. But they may have had some effect, though they could be
defeated ; and very soon after they were introduced, contrivances
followed them, apparently of a more powerful nature. The irritant
and resolutive clauses were soon afterwards invented and employed.
Conditions also were sometimes used by the conveyancer. These
did not assume the form of prohibitions, or the threatening aspect of
irritant and resolutive clauses, but appeared in the shape of obliga-
tions undertaken by the proprietor, and binding on him personally by
the terms of the investiture. Some of these were direct obligations,
and others of them were in words intended to operate by means of
implication. How far such clauses would be useful amidst a crowd
of irritancies, it is unnecessary to consider, as there are no such
clauses in the investiture of Ascog.
For a direct prohibition to sell is not in the form of an obligation.
The proprietor is only prohibited, without being laid under the ne-
454 CASftS DECIDED IN THE
csssity of obeying **. IWoWtiWM IJe i* no, snore howid ff1^
Belling the lands, than he would be bo,un^l by a prohibition in the
entail against cotninitfang any qtljex act that bad ne reference to the
inanagement o|fhe estate. Nor is there ere? an implication \n the
prohibition, to the effect that it must be construed as an obligation.
An entail admits of 09 implication* The ^fords must be direct and
plain in their meanjng | bi^t if implication ifena admissible, ^wre is
no implication in, the words of a prohibition.
Supposing then an, entail with, irritant and resolutive clauses, it is
idle in such a case to pretend that prohibitory clauses against sell-
ing, &c. can have the smallest effect by implication or otherwise.
In such a case* the pretence of an obligation to. r«-em,ploy the price
when the lands are sold is utterly absurd. No such obligation has
been expressed in the entail, and no such obligation, is implied ; for
some express obligation is necessary to raise an. implication of some
other obligation. But it ia evident that a prohibition, creates no
express obligation whatever.
Much less does an obligation to re*employ arise from the contra-
vention of irritant and resolutive clauses, which accompany clauses
merely prohibitory, without having an obligatory form* In. such a
case, the contravention raises no obligation at alL
The true effect and force of the irritant and resolutive clauses
hare not been well understood by the, defenders* Tbese clauses
were invented merely for the purpose of assisting the prohibitory
clauses, and in the performance of their functions, it must b# ad-
mitted that they proceed in a manner sufficiently menacing. By
these clauses the proprietor is threatened with absolute ruin to him-
self and his family, if ha should happen to waste or destroy the
estate, or any part of it, however small Power is given to aH and
each of the heirs of entail to bring a comprehensive action for de-
priving him of the estate altogether, without leaving him the smallest
hopes of recovering it, or any part of it. Even his descendants, to
the latest generation, are in some cases reduced to beggary without
relief, though they are totally innocent of any mult* At the. same tune,
all the deeds of the proprietor which might affect the property of the
estate are reduced, and he is not allowed the means of paying his
most urgent debts from the rente, however ample they may be. Such
is the plan of a strict entail, as is contrived for the purpose of pre-
serving the entailed estate.
Such being the rigorous nature of the irritant and resolutive
clauses, they have necessarily introduced a considerable relaxation
in the legal construction that has been applied to then?. Of this
the instances are so numerous, thqt it is unnecessary to fnter into
the particulars, It is enough to say, that they are so modified in
the practice of the Court, that the clauses whieb appear, prima facie
to be so full of rigour, are. seldom extended to the ferfehugessp much
denounced by the terms of the entail.
C0URT OP SESSION. 459
If wn% however, the object of these clauses to secure a fall and
complete protection of the entailed Mate, and it was thought neces-
sary, left, That all deeds of the proprietor against the prohibitions,
tir In contravention of them, should be void and null, and so declared
by die express terms of the entail kself. The reason for adopting
ftdefca clattse was sufficiently obvious. It was held in law that every
deed of a proprietor was necessarily effectual against the estate,
unless the right was cut off by ft quality inherent hi it. For it was
held that no man otfuld be ft proprietor, without having power to
bind his estate, unless his power was qualified by the condition, that
all his deeds contrary to the prohibitions should be absolutely void
said finlL This clause is directed, not so much against the proprietor
himself, the oontravener, as against the creditor or purchaser, who
had by debt or purchase obtained a right which would hare been
effectual if it had not been so annulled.
It Could not be said that the creditor or purchaser had in any way
consented to such a condition, but tne proprietor himself had con-
sented to it, by accepting of the investiture qualified by that condi-
tion ; and the superior who had granted the right was held to have
power in granting it to qualify it with that condition, or any other
condition consistent with law. Besides, the party to whom the
property had previously belonged, and who conveyed it to the su-
perior under the same conditions, was held to h%ve power to restrict
the term* of his gift, so a* to annul the deeds which were contrary
to the nature of the gift, and, at the same time, contrary to the same
conditions which had been* assented to by 4he superior.
Fnrthef , in order to secure the object of these clauses by a full
and complete protection of the en&iled estate, it was thought neces-
sary, 2d, That the person who should contravene the entail, &c.
should forfeit his right, Which should become void and extinct, and
the estate should devolve upon the next heir appointed to succeed,
and that ibis should be declared by tbe entail itself. For this the
reason is sufficiently obvious. It was held in law that no man could
possess a right to lands without having power to bind those lands
for his debts and deeds. In this view, the irritant clause, though it
was necessary, was not sufficient per se for the safety of the estate.
For it was not enough to declare the nullity of the deed of contra-
vention, and to declare that the creditor or purchaser should obtain
no right by or through the deed in his favour. The irritant clause
did not take away the contravener s right to possess the estate itself;
and while he continued to possess it, the law gave him foil and com-
plete power to dispose of it; and the estate was exposed, while in
his possession, to the claims of every creditor and purchaser.
Thus the two clauses were held to be necessary as counterparts
of the same plan* The right proceeded from the will of the foriner
proprietor, who had the absolute power of disposal ; and the power
which belonged to him was held to be carried into effect by the con-
464 CASES DECIDED IN THE
sent of the superior. But still it was held to be necessary that all
deeds of contravention should be declared void and null ; because, if
they were not so declared, they were not held as being null and
void, although they were contrary to the prohibitions. And that in
every case of contravention, the contravener should forfeit bis right,
as already mentioned, and that this should be declared by the entail
itself; because the nullity of the deeds, though declared by the. irri-
tant clause, was not attended with the forfeiture of the contravener,
so long as there was nothing in the entail, or nothing declared, to
prevent him from retaining his right to the property.
In this manner the prohibitory, irritant, and resolutive clauses re-
ciprocally assist each other, and are absolutely necessary to preserve
the titles of the entailed estate against sales or dilapidation.
But these subtleties of the lawyers, contrived in an early period
of the seventeenth century, were of a very questionable nature; and
though there was a decision in favour of an entail, in the famous
case of Stormont, in which the entail was so defective that it even
wanted an irritant clause, that decision never had any authority ; and
the greatest lawyers held the whole of the plan to be extremely
doubtful. In effect, it is humbly thought the plan was full of diffi-
culties, and could not have been supported by the common law. . It
may be noticed, in particular, that the irritant clause did not annul
the act of contravention before declarator. In the mean time the
contravention was valid. Neither did the resolutive clause take
away the right of property before declarator. The heir still remained
proprietor, having right to act as such.
In short, the act 1685 was necessary to establish the validity of
entails. It is thought that no view of the common law could have
supported them without the aid of that statute. This is a point
which may now be considered as absolutely indisputable, as it has
been established by the highest authority in the law, against which
nothing of any weight can be stated. See Stair, b. 2. t. S. § 43 and
58, Tailzies— Erskine, b. S. t. & § 25— Mackenzie, Vol. II. p. 489—
'Opinions 'of President Miller, and Justice-Clerk Braxfield, and of
Court—Hamilton, &c against M'Donald, 3d March 1815 ; Fac ColL
p. 326 and 327.
It may now be considered more particularly, whether the pursuer
is under any legal obligation to re-employ the price of the lands
which have been sold. Upon this important question the following
considerations may be offered.
It is quite clear in law, that, before the introduction of strict en-
tails in Scotland, proprietors had power to alter their investiture in
virtue of their right in the property, and that without being subject
to any claim from other parties ; and, of consequence, when they
sold the land, they were not bound to re-employ the price of it, but
had power to dispose of it as they thought fit.
This is the foundation of the present argument, because it will be
COURT OF SESSION. 456
found that proprietors of land at the present day have the same
powers, excepting in those cases in which they have been restrained
by law from selling, or hare incurred an obligation to account for
the price of the land when it is sold.
The introduction of strict entails was an innovation which inter-
rupted, in various ways, the commerce of land ; and ultimately, by
the statute 1685, c. 22, when it is applied, the heir of entail is de-
prived of the power of selling. But where that statute has not been
properly applied, he has not only power to sell, but, as we conceive,
he has power to dispose of the price ; for entails, before the statute
1685, were not warranted by any law whatever, and the statute
being passed, it did not apply to nor warrant every entail that might
be contrived. For the statute, so far from being intended for every
entail, is intended only for entails of a certain form, and when en-
forced by irritant and resolutive clauses ; and certainly, after the
statute 1685 passed, no entail could be effectual but those in which
the parties had availed themselves of the enactments of that statute.
And all other entails, not being warranted by the statute, were not
sufficient to bind either hein or creditors r and such is the entail of
Ascog, now in question, as it not only enables the proprietor to sell,
but puts him under no restraint as to the price, by re-employing it
for the benefit of the other heirs of entail, either by the purchase of
land to be entailed, or in any other way.
For the entail of Ascog is not one of those which contains fetters
or obligations binding the pursuer to employ the price. There is no
such obligation in the entail. There is indeed a prohibition to sell ;
but such a prohibition, in an entail that is not fenced by irritant and
resolutive clauses, is a prohibition which may be legally discharged,
as it contains no obligatory force. The prohibitory clause is not
binding even by implication, though implication, if it could be al-
leged in this case, is not admissible in a question of strict entail.
Now, the entail of Ascog is one of the strictest nature, with irritant
and resolutive clauses applicable to the prohibitions. This, therefore,
is the case of a strict entail, in which no implication whatever can
be allowed.
It is alleged that this is a question among heirs, and that al-
though strangers are entitled to purchase parts of the entailed estate,
the pursuer, who is an heir of entail, is barred by his quality of heir
from taking advantage of that purchase. But the answer to this is
obvious. In selling a part of the estate, the pursuer did no wrong,
bat only used the right that was competent to him. To pretend
that the pursuer did wrong in selling, because he is an heir, is an
imagination for which there is no ground whatever. The defenders
cam point out no authority, either in the statute or in any law, by
which the pursuer was barred from selling, nor any law declaring
that he did the smallest wrong in selling. In effect, the question
among heirs is the very same with the question with strangers who
456 CASES DECIDED IN THE
my become purchasen. There u ho pretence, therefore* far bain-
taining that there It any law or impediment whatever against the
pursner in making use of his right*
Some of the other argument* are still more untenable. Fot ex-
ample, it has been stated that the pike of the estate I* a surroga-
tom far the estate itself, from which it is inferred that the price* like
any ether surrogatum, must be employed in the purchase of property
to be entailed. Bet this is an absolute begging of the question, if
indeed any dispute on the subject can be maintained. Before ft can
be made eat that the price is a surrogntum, the defenders must es-
tablish the fact that they have a right to the price; and if they es-
tablish such a right, it signifies very little whether they eatt it S sur-
fogatum or net. But we conceive thai this right of smvegatum can-
not be maintained, if it appears that the pursuer had power to sell,
and was under no restraint or obligation not to seM. Indeed, if he
bad power to sett, it seems to follow as a necessary consequence,
that he has right to the price, because he sold en his own account,
and not on account of the defenders.
The defenders have also founded on the principle upon which
contracts of marriage are regulated. But we could not have antici-
pated an argument of that nature; because the obligations contained
. . in these deeds hare no resemblance whatever to the obligations in
tailzies. A contract of marriage is in every case faff of implication,
and depends almost entirely upon the good faith of the contractor*;
whereas there is tt>t the least Mom' in a strict entail for implies-
tien of any kindw
And) upon the whole of this matter, it may be stated1 with confi-
dence* that the obligations, if such they can be called, in favour of
the heirs of entail, cannot be binding in a case in which nothing can
be sustained without applying to it the most rigorous construction,
which is of necessity given to entails. What Words are. there in
this entail that can, without implication, be interpreted as a binding
obligation to re-employ the price of the lands which have been sold ?
Excepting the destination itself, in which the heirs of entail are en-
umerated, there is not a single phrase in the deed that must not be
construed according to- the most lax interpretation, before- any claim
of this nature can be raised upon it. The question then comes to
bey whether the rules of interpretation so completely established' are
to be wholly abandoned, far the benefit of these heirs of entail ? So
far is this from being tenable, tbat the defenders would certainly
have failed in their case, although the irritant and resolutive clauses,
which destroy every kind of implication, had been cancelled.
Prior to the statute 1685, the effect of entails depended very
much upon imposing die different clauses or conditions in an obliga-
tory form, so as to be expressly binding upon the granter ancT his
heira, as well as the helm of entail This form1 gave the substitute
heirs some protection under the act 1621, c 19. But we conceive,
i
COURT OF: SESSION. 467
tin*) although this statute might have presented gratuitous aliena-
tions, as being contrary to any direct obligation* entered into, it
neve? could have applied to the present case. This is not a gratuitous
sale, hut one entered into for a fair and onerous price; nor is it granted
to a conjunct and confident pernon ;-^two of the essential requisites
ojf the act 1621, without which it cannot apply.
An4 even in tbecaae of a deed expressed in an obligatory form,
the net 1681 had no effect against an entail, in termfe of the statute
1685 ; because that statute bad the effect to, exclude the other as to
the penalties, according to dp word* of Eifkinq, K 7. 22, that,
' where statute hath fe&lcted special penalties upon any offence, all
* others are understood to be amdude4.' Therefore* since the act
1685, any feeble aid that entails could previously have derived from
the statute J6$l was at an end I and, since the passing of the act
1685, every entail must stand or Ml by that act alone*
Accordingly* it will be found, from a due attention to the differ-
ent cases which have bean stated and commented, on at great length
by the defenders, that there is not the leant ground for the conclu-
sion drawn, from them.
Before considering these, decisions which were, so much (bunded
on as establishing the fight of the heirs of entail to insist upon the
heir selling to reinvest the money, it is important to observe, that
notwithstanding the vast number of entail cases that have occurred
in thia country, and h* which entails have been aet aside in ques-
tions with the heifs* we do not know of a tingle case m which the
heir baa eves: been compelled to re-employ the money* or the price
of the estate sold, in acquiring lands to be. entailed in the form of
the first entail ( nor, with all the industry and ability exerted on the
pan of the defenders, has a tingle case of this nature been discovered.
Indeed, as it is admitted that the defect in the entail could not be
cured by reinvestment of the price in, the same terms, the operation
m^ght be entirely nugatory, even if it could be legally enforced,
since the very person who reinvested could again sell the subjects
whenever he pleased, and must be the sole judge of this matter, and
of the nature end situation of the subject, to be purchased, which
might again be eold as often as the whim, caprice, or interest of the per-
son is possession might dictate, without restraint from any of the heirs.
The only case referred to, in which it in alleged thia principle- was
e*er carried into effect, occurred nearly a century ago. But it does
not appear to us to bnye the least weight. This is the case of Lord
Stratlinaier^gainst the Duhe of Douglas, 2d February 1728. The
principles upon which that case was decided have been long ago ex-
ploded* It waa there successfully maintained, that a prohibition to
alienate and to contract debt implied a prohibition to alter the
succession, although the dioect contrary has been since repeat-
edly found, both in, this. Court and in the House of Lords. In-
dead* wje doubt feejn the tenns in which thia case * reported, and
458 CASES DECIDED IN THE
from the terms of the judgment, whether it watf the case of aa en-
tail to which the strict interpretation of an entail applied. For the
granter of that deed, the Countess of Sutherland, imposed obliga-
tions upon her heirs ; and as her son. Lord Forfar, served heir of line
to her, he was universally liable to implement all her obligations of
every nature and description. Tliis would have applied to him as
heir of line, even supposing he had not been heir of entail, and most,
in the same way, have affected all persons representing him. It
seems impossible to hold that case to be authoritative in law, every
point, in so far as it relates to the construction of entails, being ad-
mitted to be erroneous. And there are also other grounds pleaded
by the parties in that case, sufficient to show that it is totally inap-
plicable to the present.
The next case is that of Pitlurg, 29th July 1761, to which a great
deal of importance has been attached. The question, as staled by
Mr. Wight, ' was relative to power of an heir of entail to sell;' and
the clause on which that question rested was, that the heirs of entail,
in the event of committing treason, should lose their liferent, but
that the right, after their decease, should return and remain with
their next heir of tailzie, and that die heirs of tailzie * shell never
* have power by any other deed whatsoever, whether treasonable or
' otherwise, by contracting of debt exceeding the sum of 12,000
* merks for provision of their younger children, or any other manner
* of way whatsoever, to squander or put away the same, or any part
4 thereof, vel faciendo vol delinquendo, any ways contrary to this pre-
4 sent settlement.' The whole argument on both sides is merely di-
rected to the point, whether the above clause included a prohibition
against selling ? And the Court found that it contained a prohibition
against selling or alienating the estate, to the prejudice of the sub-
stitute heirs of tailzie ; and, therefore, that however safe an onerous
purchaser might be, the pursuer, by a voluntary sale of the lands,
would contravene the tailzie, and be subjected to an action of repa-
ration and damages at the instance of the substitute heirs. Upon
this the following remarks may be offered.
1. This case, in so far as it adopted a different mode of construc-
tion of the entail, in a question with heirs and third parties, has been
completely overturned by all the cases decided since that time. Per-
haps the most nice and difficult cases as to the construction of fetters
which have ever been tried were with heirs of entail. Such are
the cases of Edmonstone of TiDycoultry, of Lady Dalhouaie against
Brown, of Henderson, and a great variety of other cases, all of which
have been decided in this Court and in the House of Lords, and
have completely established the very different doctrine, that there is
no distinction in the construction of an entail betwixt heirs and third
parties, and that there can be no implication in an entail. This,
therefore, is admitted to have been an erroneous judgment.
2. After having erroneously decided that the heir fefi under the
I
COURT OF SESSION. 469
prohibition to stall, the Court found in thai case,— whew there was no
room for such a finding, after establishing the prohibition,— that by
contravening the entail he might be subject to an action of repara-
tion and damages at the instance of die substitute heirs of entail.
But after having erroneously adopted the one implication, the Court,
upon the same principle, may hare implied other obligations. After
deciding the first by such a latitude of construction, the same Judges
gave an erroneous opinion on the other, although, from the decision
of 'the first point, it was unnecessary to decide the second. This
case, therefore, we cannot consider as entitled to any weight what-
3. But it was stated that Mr. Miller, (afterwards Sir Thomas
Miller,) who writes the petition for Gordon Cuming, the heir in
possession, never so much as argued the present point, but confined
his whole argument to there being no -prohibition against selling;
and that there is no discussion with regard to the question of repara-
tion by either counsel, which could not hare been omitted, had it
been considered' a sound plea.
* We think the argument in that case, that there was- no prohibi-
tion as to selling, was absolutely conclusive, and should hare succeed-
ed, as it always did afterwards. But we know that some of the most
able counsel, whose attention and arguments have been applied to
one view of a tailzie, which they conceived quite decisive, have al-
lowed other fatal objections to escape them. Without noticing some
most extraordinary instances of this, much later than the case of Pit*
lurg, the recent case of Blaithall may be mentioned. The question
was first tried in this Court Solicitor-General Blair, Mr. Charles
Hay,' Mr. Mathew Ross, and another counsel, were engaged upon
the same side in that case. Their object was to obtain a judgment
that the entail was defective, and that the estate might be sold. It
waa decided by this Court, and afterwards in the House of Lords,
that the entail had not the defect which was alleged. But some
time afterwards, the case having come back from the House of Lords,
it was discovered that the entail contained no prohibition against
alteration of the succession. This had escaped the Court as well
as the counsel. , But no sooner had the discovery been made,
than anew title was made up, by resignation of the lands for anew
infeftment in fee-simple, and the question was then tried and
decided without the smallest difficulty ; and the estate was afterwards
sold.
4. But to return to the case of Pitjurg. There might have been
strong reasons for not urging the plea that the heir was not bound
-to reinvest ; for the argument in that case, as to the inadmissibility
of implication or construction, could not be stronger than it was upon
the point of there being no prohibitory clause against selling. Fur-
ther, at that time, it was not distinctly understood whether substitute
heirs of entail might not, in certain circumstances, apply for inbibi-
460 CASES DECIDED IN THE
tiea against the heir id possess!***, doing any tiling to defeat their
right. The case of Bryson Wm decided only the year before. It
was not printed in the Reports until 1770! eleven yeart after the
case of ftflkirg* Neither Mr* Miller nor Mr. Garden, the two coun-
sel in the ease of PUlurg, were counsel in the case of Brysen, ea ap-
pears by die report ; and the ease of Brysen could not he held ss
quite decisive until it had been followed by the ease of Lord Anker-
rillt, and the ease of Westsffiells, fee. fee.
Now, so longs* it was aadeissood that sabetitafe heirs ef cmtafl
coald mass inhibitions accenting to the old system, before the statute
1685 was introduced, there could be no doubt of an existing ofcGga-
tiea. But as this doctrine is totally abandoned; the question must
now be considered in a different view* la many cases where an ex-
press obligation was constituted m favour of substitute heirs, an in-
hibition was competent ; and tab may have led to the opinions of
Hope, Mackenzie* aid Elcftnea* It will not be disputed, however,
that since the time of Erakine, who* expresses great doubt with re-
gard to the former decisions, and since the decision* above referred
to, inhibitions upon the prohibitory clouses of an entafl are totally
incompetent. The nature of entails, and the effect of the statute
1685, from the many discussions which have taken place wish regard
to that statute^ are now much better understood than formerly. AH
those authorities, therefore, evanish which depend on we competency
of umibhiDSv
Indeed, Lord Etettes's opinion, (p. 119,) and the whole awthori-
tJsa to> which be refers, just come to uis^-Thal if there be a valid
obligation net to alter me destination, or t* contract debts, there is
no reason why a person should not be bound by each an ohfigation.
Ami if the** be a valid obligation against the maker and Mr neirs,
there is no reason why mMbitioa should net follow on it; and he
feaim* an the ease of Beamy agaaet Bhmy, Sfttfr January 1998, as
the authority for his doctrine.
New, let tme case bw tooagl* to that erft*tfta< Cafrmlmwdon,
anestinea** ev aa^uoSonwm, b# fowled oathi^eniatt? It H admit-
tedtbey emmet. Bat if there had bees an eWigatmn, nieet certsinly
asm and all of these exigences might have followeuY provided the
deed had eantamed aw iriitSBKio#re»oltitivieJdam>esrf Bttwfcevmere
areirdtaatandresohidirwemaaBs in she deed; any ofAe* de^see im-
posing restraints are teparseded, upon the p^raeifctle' amsady referred
to, and to be further noticed in the sequel.
in the ease1 of Binny, to which Etdnes refers, Bffargaret Binny
hadamia>edaboiio%.ot^ to harm-
tbsr, and to laeigni the lands in feveur of herself, and ilmlMrs of her
body, whom fiutrag, to the hairy ef Alexander Binn^, her' femer,
and obliging heiastf t« do>ttMmn#; eeattary to that succeesieEi. She
having married^ eoawajtlw leads to- her hushaml by the contract.
By iamhWoa lua* a^
COURT OF SESSION. 461
the Court in that ease found that the wife wm bound to resign,
< seeing there was inhibition used before the contract ; but they did
* not decide whether due clause would have excluded the debts to
1 be contracted by the said Margaret or hex heirs upon a just ground,
* without collusion ; but found that she could not make a voluntary
' disposition to exclude that succession, in respect of the obligement
( to do nothing in the contrair.'
If, therefore, any weight could be placed upon the opinion of Lord
Elchies, and the authorities to which he refers, it would just come
to this, that if there was an obligation either upon the maker or the
heir of tailzie, inhibition might be used ; but as no inhibition could
be used in this case, there is no obligation. And, indeed, in the
ease of Binny, founded on by Elchies, there waa a positive obligation
by bond upon Margaret Binny and her heirs, and which, quoad the
obligee, who was the person with whom the question waa tried, was
perhaps an effectual obligation, as the question occurred before the
statute 1685.
The only other case founded on as supporting this doctrine is the
case of Sutherland, 26th February 1801. But in that case we do
not see that there was even any argument upon the subject ; and it
seems to relate to another point altogether. In that esse there was
a question, whether the destination in the entail waa to be regulated
by the dispositive clause, or by the procuratory of resignation ? The
claimant's predecessor had been nominatim called in the dispositive
clause, hut his heirs had not been called. The question then was,
whether it was to be regulated by the dispositive clause, or by the .
procuratory of resignation, in which the heirs ace called ? The Court
found that it. must be regulated by the precnnUory of resignation.
The entail contained no prohibition against altering the order of suc-
cession. The heir in possession had executed a trust-deed, making
Ve trustees accountable, after payment of his debts, to his heirs and
nuipneti The entailed estate waa sold ; and the question seeaas to
have been, Who was entitled to the reversion of the price, after de-
duction of the entailer's debt*— whether the heira of entail, or the
heirs of the last heir ?
As to this case, there was. no prohibition against altering the order
of succession, the general disposition by the heir of entail in posses-
sjpn» in which be makes hit trustees, accountable to his heirs and
assignees, might have been held as an alteration of that succession.
If it bed, it would have put an end to the daim of the heira of en-
tail ; and if it had not, the heir of entail was entitled to make good
his right to the reversion of the price of the lands, according to the
entail, the succession to> which had not been altered*
We think it unnecessary to take notiee of the cases of WestshieDs
and of Moaftie, the first of which was remitted 1>y the Bouse of
lords upo* a very full hearing; and the second, we undesstand, was
enttfal in QonsftiueiiCfc of the deep impression made by the remit b
m CASES DECIDED IN THE
die case of Westshiells, and of the Lord Chancellor's speech in that
case.
We also consider it unnecessary to take notice, at any length, of
the decisions of the House of Lords in the Queensberry cases, by
which the decision of the Second Division, which had refused the
claim of damages, was affirmed, and the decision of the First Divi-
sion, sustaining the claim of damages by the heirs of entail, was re-
versed. ' But these judgments of the House of Lords are of the high-
est importance, as they adopt the principle laid down by Erakiae,
already mentioned, that ' where statute hath inflicted special .penal-
' ties upon any offence, all others are understood to be excluded.'
The case of a strict entail unrecorded was also founded on. The
entail is not good against creditors, but may be good against the heir
by personal exception. In squandering the estate, while he omitted
to record the entail, he does a great wrong to the substitutes, nearly
the same as if he had burned the entail in his possession. Besides,
registration was intended by the statute merely to operate against
third parties.
Upon the whole, we apprehend that the law has been so fixed
upon these questions, that there is little room for controversy with
respect to them ; and if, contrary to our expectation, the same ques-
tions shall again be thrown open, they must necessarily affect every
one of the numerous cases decided during the last forty years in
which an entail has been set aside. In the sincere hope that such a
general calamity may not take place, we shall conclude the statement
• of our opinion with the following propositions.
1. Before the introduction of strict entails in Scotland, investitures
could be altered by the proprietor, in virtue of his right of property,
and of the rights which followed it.
2. The introduction of strict entail was an innovation contrived
by the lawyers, the effect of which was at first very little understood;
and its effect remained uncertain, until the law was established by
the statute 1685, c, 22.
S. During a period before that statute was passed, the conveyances
were subject to implications of various sorts, many of which had no
- ' foundation in law. Many entails were supposed to be protected un-
der the act 1621, c 18. Some of these were in the direct form ;
but many of tbem depended upon mere implication, and sometimes
upon supposed implication, assumed without grounds.
4. During the same period, prohibitory clauses were iatrodeced,
as obligations by an assumed implication, for which there were no
grounds.
5. Entails, before the statute 1685, were not warranted by law ;
w and when the statute was passed, such entails as were not warranted
by it were not sufficient to bind either heirs or creditors.
Accordingly, the rule of law laid down by Erskine, and since
! settled by the judgments of the. House of Lords jn the Queensberry
COURT OF SESSION. 468
cam, totally preriudes, in the case of a strict entail, any other pro-
tection to the estate but the prohibitory, irritant, and resolutive
clauses of the entail itself ; and thus the act 1621, and every ground
of implication whatever, have been rendered of no force in such a
But the most striking proof that the entail has no protection what-
ever but the prohibitory, irritant, and resolutive clauses, is the rule
now so completely established, that an inhibition upon an entail is
not competent.
6. Contracts of marriage proceed entirely upon implication, which
is altogether inadmissible in strict entails.
7. The price of the estate has' been called a surrogatum for the
lands, which must be re-employed in the purchase of other lands de-
scendible to the heirs of entail. But this is an evident mistake.
The proprietor had power and right to sell the lands, which were his
own property, subject to no claim whatever. If they had remained
unsold, they might have descended to the next heir of entail ; but
having been sold, there was no condition in the entail by which the
proprietor who sold them could be deprived of1 the price.
The only ground that can be assumed in such a case would evi-
dently be an implied condition. But there is no such condition even
implied, and any implied condition would be inadmissible.
8. It is alleged that although third parties are at liberty to pur-
chase the entailed lands, heirs are bound by the entail, and commit
a wrong in selling ; but this is the worst of implications. It cannot
be pretended that there is the slightest vestige of a direct or express
rule in law against an heir who sells a part of his estate, and who, in
doing so, is warranted by law.
9. The question among heirs is the same as the question with
strangers. The law is the same with both ; and the implication
against the heir is as unfounded as any of the other implications.
10. Where an entail with prohibitory, irritant, and resolutive
clauses is so incorrect that the proprietor has power to alienate or
burden the lands, he cannot be compelled to re-employ the price or
prices ; and if any legal compulsitor were supposed to be competent,
it would still be inefficient, because the proprietor could again alien-
ate at any time, without notice to the heirs of entail, and by that
means defeat their object, and thus the rule would apply, frustra petis.
11. Taking into consideration the foregoing propositions, either
singly or collectively, the necessary conclusion is, that no entail with
prohibitory, irritant, and resolutive clauses, under the statute 1685,
c. 22, when the clauses are incorrect or defective, and thereby ex-
pose the entail to be defeated by sale, contraction of debt, alteration
of succession, or any other defect, can be supported ; nor can the
prices be demanded of the heirs of entail who have sold or disposed
of the estate, because, from the nature of the entail, no process can
be issued against them to re-employ such prices.
vol. v. 2 G
464 CASES DECIDED IN THE
12. Jfone of the former decisions of this Court aflfec* Uia^wstion
now at issue; and the opinion delivered by the Lord ChancsBorin
the case of Wemtahiells, when be remitted that case, that there was
no precedent applicable to it* is perfectly well founded.
And, finally, .
18. It is not surprising that such is the result of a discussion which
demonstrates that every argument of the defenders rests upon assum-
ed implication, for which there is not the slightest foundation in
reality, and which, if ever at any time countenanced by some law-
yers, has long been compkttely overruled and exploded.
Lord Gillies concurred in this opinion*
Pursuer's Authorities.-*. Ersk. 8. 24 ; 1. Ersk. 7. 22 ; 18. Vesey, 87 ; Brytojj,
Jan. 29. 1760, (15511, and 5. Brown's Supp. p. 941) ; L. Ankerville, Aug. 8. 17»7,
l£!i' jMh«i*:-asme, July Ik IT34, (W601) , Gardner's Credit**, J«.
2J. 1744, (1*5*1) ; Hope's Min. Pr. 16. 4 9> &e. ; ». Mwk, 490; & Sta«w 3. 59 ;
3. Ersk. 8. 23 : Willison, Feb. 26. 1 724y (15369) ; Strathnaver, Feb. 2. 1728, (15373,
and Craigie and St. p. 32) i Gordon, July 29. 1761, (15513); Mhtritnt
Feb. 26. 1801, (No. 8. App. Talkie) ; tockhart r. Stewart, June II. 1811, (F. U
remitted); Earl of Breadalbane, June 12. 1812, (F. C.) ; Young, Dec. 7> 1705,
(15483) ; Hay, Feb. S. 1753, (15603); Earl of Wemyss, Feb. 28. 1815, CF. C-)i
Young, Nov. 13. 1761, (5. Brown's Supp. 884) ; M'Nair, May ft. 1791, (Bell •
Cases, 546»)
Gibson-Craigs and Warblaw, W. S— A. Mank*rs, W. S*— Agents.
No. 238. Alex. Boie, Pursuer. — Skene—H. J. Robertson.
Lady Gordon, T)e£eDder*-**McberUo*. 4
Sir James Gordon, Defender.— Jfore.
Husband and Wife.— Held,— That a husband having intimated to an ianjeeeper
that he would not be responsible for any articles furnished to his wife alter a cer-
tain date, was not liable thereafter for any "thing further than what was necessary
for her maintenance according to his rank and fortune.
»
Feb. 23. 1827. Alexandeb Buib, vintner in Fochabers, brought an action
1st Division. *ga*n8t s*r James Gordon of Letterfbnrie, and a supplementary
Lord Eldin. one against Lady Gordon, concluding for £9SH : 18 : 8^ conform
!>• to certain accounts* commencing on the 9th of May 1821 > and
terminating in September 1826. The articles consisted, hi a great
measure, of dinners, claret, port, and other wines, with shrub,
whisky, and other spirits, which appeared to have been consumed
by Lady Gordon and one of her sons in the inn kept by Buie ;
and there were also various other charges for chaises, coach tick-
ets, servants' victuals, &c. Against this claim Sir James stated,
That although there was no legal separation, y*t he and Us wife
lived apart from each other by tacit consent ; — that she bad right
r" COURT OP SESSION, 468
td am annuity of £HQ out of his estate, in terms of their contract
of marriage, which was intended for her maintenance ;— that the
articles alleged to have been furnished were such as ought not to
form a claim against him ; and that, at all events, he had written
to the pursuer, on the 1st of February 1824, that * I will not pay
* or be answerable for any accounts taken on with you from this
' date, without my written order for the same ;" — rthat notwith-
standing he was willing to pay the amount then due, being £%5,
but that he was not bound to pay for any articles which had been
subsequently contracted.
By Lady Gordon it was contended, That as she was a married
woman, and was not separated from her husband, no personal liar-
hilitj could attach to her ; and that as the annuity was not in-
tended, to defray her expanan £or necessaries, the pursuer could
not proceed against it, but only against the estate of her husband.
To this it was answered,
1. That as the letter could not have more extensive effect thari
an inhibition, Sir James must be liable for the furnishings to his
wife, in so far as he could not show that he had otherwise sup-
plied her ; and,
2. That as it was not denied by Lady Gordon that she had
contracted the debt, she must be responsible for it.
The Lord Ordinary found the ' defenders, Sir James and Lady
* Gordon, liable to the pursuer in that part of his accounts which
' was incurred preceding the 1st of February 1824, and in such
' parts of the accounts as had been incurred, subsequent to that
* date, for necessary articles of furnishings to Lady Gordon ; but
* found the defenders not liable in any other part of the said ac-
' counts.'
All parties having reclaimed, the Court ' altered the interlocu-
f tor of the Lord Ordinary complained of, so far as it finds Lady
Gordon liable for payment of the articles of 'the account pursued '
for, incurred prior to the 1st day of February 1824 years, and to
that extent sustain Lady Gordon's defences ; assoilzie her from
the conclusions of the libel, and decern ; and further find the
defender Sir James Gordon liable in payment to the pursuer
oi such articles of the account pursued for, incurred posterior
to the. 1st day of February 1824, as were necessary for the
maintenance of Lady Gordon and her family, according to her
husband's rank and fortune, and remit to the Lord Ordinary to
proceed 'accordingly ; also remit to his Lordship to hear parties
as to what other articles of the said account, contracted posterior
to the 1st February 1824, Lady Gordon ought to be found
liable in payment of to the pursuer out of her separate fund ;
2o2
466 CASES DECIDED IN THE
( and, quoad ultra, refuse the desire of the said three notes, and
« adhere to the interlocutor of the Lord Ordinary complained of,
' ' reserving the question of expenses until the issue of the cause.*
Lord President.— After the letter of the 1st of February 1824, the
pursuer was not entitled, without the written authority of Sir James,
to make any furnishings to Lady Gordon. Sir James was entitled
to say to him, that he would not permit his wife to deal with kirn ;
and therefore I rather think, that after being so put upon his guard,
be could not claim from Sir James even the expense of necessary
furnishings. This is not like an inhibition ; it is a notification to an
individual tradesman that be was not to furnish any goods whatso-
ever without written authority ; whereas an inhibition interdicts aH
and sundry from furnishing any thing else than necessaries, which
this letter could not do. Even, however, if he had a claim for ne-
cessaries, there seem to be very few articles of that description in
the accounts. We have sustained a claim against the husband for
funds advanced to enable a wife to go to Bath on account of .her
health ; but here chaise after chaise appears to have been hired with*
out any definite object*
Lord Gillies. — I observe that there is £5 charged on one *day for a
dinner and wines to Lady Gordon and her son.
Lord Craigie. — Sir James is clearly not liable for such articles ss
claret, port, shrub, &c, which should never have touched the lips
of this lady at his expense ; but I rather think that her separate fund
may be attached for the debt.
Lord Gillies.— Sir James admits his liability prior to 1st February
1824, and I apprehend that he must also be liable for those necessa-
ries subsequently furnished, and that Lady Gordon must be liable
quoad ultra.
Lord President. — On reconsideration, I rather think Sir James must
be liable for necessaries even after the date of the letter ; because, if
the articles were such as he ought to have supplied, it is jus tertii to
•him from whom she got them.
M'Kenzie and Innes, W. S— Morrison and Burnett, W. S*—
. J. S. Robertson, W. S— Agents.
No. 239* G. Mark and J. Stephen, Suspenders. — Jameson — Carrie*
J. Low, Charger — D. ofF. Mancreif—W. Bett.
Feb. 23. 1827. t This was a special case relative to a charge for rent, in which
2d Division, the Lord Ordinary suspended the letters simpliciter, and the
Ld. Cringletie. Court adhered.
M'K.
T. Grierson, W. S— J. R. SiOdart, W. S«— Agents.
COURT* OF SESSION. 467
D. M'Michael, Advocator. — Sd.-Gen. Hope-^Jameson. No. 240w
H. and R. Baikd and Others, Respondents. — Maitland — Shaw.
Jurisdiction. — An action in the Court of Session haying been compromised, in con-
sequence of the defender agreeing to pay expenses and a composition— Held
competent to raise an action on the agreement before an Inferior Court.
The only general point involved in this case related to a ques- Feb. 24. 1827.
lion of jurisdiction. Baird and others had brought an action of J8tDivisioii,
reduction, on the act 1696, c. 5, of a preference over the bank- j,0rd Eldiu.
rupt estate of Cullen and Company, which M' Michael had ob- H.
tained, and on which they were creditors. After decree of reduc-
tion had been pronounced, and an order to account was issued,
JtfMichael wrote this letter to Bairds : — * On condition you will
' drop the process, and discharge your claims on the sequestrated
4 estates of Daniel Cullen and Company, and Daniel Cullen as
4 an individual, I will pay you two shillings per pound on your
' respective claims, and the expenses you have incurred. If any
* difference arise as to the account of expenses, it is to be settled
* by referring to a respectable neutral writer here (Glasgow,) or
* in Edinburgh.9 This offer was accepted, and the process dis-
charged. A dispute having then arisen as to whether the offer
meant that M'Michael should pay the expenses incurred as be-
tween agent and client, or as between party and party* Bairds and
others brought an action before the Magistrates of Glasgow,
founding on the letter, and concluding for the expenses as be-
tween agent and client, subject to taxation, in terms of the agree-
ment* Besides other defences, M'Michael objected to the com-
petency of this action, That as it related to the expenses of a pro-
cess which had depended in the Court of Session, the Magistrates
had no jurisdiction to entertain it.
To this it was answered, That the action in the Court of Ses-
sion was at an end, and that the present one was to enforce an
ordinary civil contract, to which the Magistrates were competent.
The Magistrates having sustained their jurisdiction, and de-
cerned in terms of the report of a writer in Glasgow, who taxed
the accounts, the Lord Ordinary and the Court, in an advoca- •
tioti, adhered.
Lord Craigie was of opinion that the action was not competent bo-
fore the Magistrates, and that it ought to have been brought beforo
the Court of Session ; but the other Judges held that it was per-
fectly competent. '
T. Johnstone,— C. Fisher, — Agents.
466
CASES DECIDED IN THE
2d Division.
F.
No. 241. J. Thomson and Sons, Petkiefters.— jS6/.-Gm- Hope—Bot&eU.
J. Broom and Others, Respondents.— 2>. <jff- JKdncreffi'- f
Cowan.
Jtanfaupt— Sequestration. —Held incompetent to enter into objections to ward-
ing sequestration, other than that the applicant is not within the description of
persons described by the statute, or that the concurrence is not such as the sta-
tute requires, other objectu»ns< fotpang merely «. ground for recall*
Feb. 24. 1827. Thomson and Sons having applied for sequestration under the
Bankrupt Act, Broom and others opposed it, on the ground that
they had already granted a trust-deed for behoof of their credit-
ors, to which almost the whole had acceded, and under which one
instalment had been paid to the creditors. To this it was an-
swered, That although this might found a reason for recalling die
sequestration, it could not competently be stated in the present
stage, the Court being bound, under the 18th section of the Bank-
rupt Act, toaward sequestration, unless the party applying for it
did not fall within the description of persons entitled thereto, or
had not the concurrence required by the statute.
' The Court being of opinion that they could not competently
enter into the question as a bar to granting sequestration, award-
ed it accordingly.
J. M ACANDREW, — GaIRDNER Slid ROBERTSON, W. S.r— Agents.
No. 242- J. Buchanan.— Skene — Pyper.
J. Dunlop.— D. qfF. Moncreiff—A. Dunlop jun.
Competing*
Bankrupt— Sequestration. — In the election of a trustee, held no objection
to the vote of a creditor, founded on bills accepted jointly by the bankrupt and
another individual, that lie had not valued and deducted that individual's secu-
rity, the bankrupt being in fact the primary obligant, and liable to relieve the
other, though not appearing so ex facie of the bills. .
Feb. 24. 1827. In a competition between Buchanan tod Dunlop for the office
of trustee on a sequestrated estate, the Sheriff of the county,
on a remit from the Lord Ordinary, reported that the majority
of legal votes was in favour of Dunlop. The Lord Ordinary hav-
ing thereafter confirmed him as trustee, Buchanan reclaimed,
but confined his objections to a single vote in Dunlop's favour,
amounting to «£>1643. This vote was founded in part on bills
accepted by the bankrupt jointly with two other individuals,
who, however, held letters from the bankrupt, bearing that he
alone had received the value, and binding himself to reUere
2d Division.
JLord Newton.
F.
CDUBT OF SESSION. m
them. The objection taken was, that the creditors had not
valued and deducted the security of the joint obligmts on the
bills, which it was contended he was bound to have done, unless
it had appeared ex facie of his document of debt that the bank-
rupt was liable to relieve die other obligants.
To this it was answered, That all which the Bankriipt Act re*
quired was, that the bankrupt should be in reality the primary
obligant, and liable to relieve the others ; in which case the cre-
ditor was not bound to value and deduct their security.
The Court unanimously repelled the objection, and adhered to
the Lord Ordinary's interlocutor.
Macmillan and Grant, W. S. — J. Kennedy, W. S. — Agents.
W. Walks*, Suspender,— Greenahiekb. No. 243.
J. Grieve, Charger*— Wilson.
Pre$cription. —A proprietor of lands having fened them, and infeftment having
been taken ; and having thereafter granted to the feuar a disposition of the lands
with two raannen of holding; and titles having been made up, and the land* pos-
sesAt/1 thereon for more than 40 years, without reference to the feu-contract —
JleLd that although the property and superiority had been thus separated, yet a
good prescriptive title to both had been acquired*
The lands of Meikle Beath originally belonged to James Feb. 27. 1827.
MitcheH, who was succeeded by John Stewart and Henry Ward- l8T d,vi6I0N#
law, as heirs of provision. These parties obtained precepts from Bill-Chamber.
Chancery ; and, after Stewart was infeft, he granted, in May 1708, Lord Mcdwyn.
a disposition of his half, containing precept of sasuie, in favour of ,
Wardlaw. In August of the same year Wardlaw disponed the
whole to John Dewar, and in December thereafter Wardlaw
was infeft in hia own half in virtue of the precept from Chancery,
and in the other under that from Stewart. In May 1708, John
Dewar, by m disposition in a contract of marriage, disponed the
whole lands to his son James Dewar, who was base infeft on the
19th of August 1730. James Dewar entered into a contract of
fea with David Betaon primus, by whiph he feued the lands to him
for payment of a feu-duty, and upon which Betson was infeft.
Thereafter, on the Sd of November 1735V James Dewar granted
a disposition $o Betson, by which he sold to bim ' all and haill
' that my town and lands of Mitchell's Beath, alias Mastertown's
' or Haikeft Beath, with houses, &c. together with all right, title,
' interest, claim of right, property, and possession, as well petitory
* as possessory, which I, my predecessors, authors, hears or succes-
' sors, ever had, have, or hereafter may have, claim, or pretend
* thereto,' &c. ; with a double maimer of holding} procurator/ of
470 CASES DECIDED IN THE
«
resignation, precept of sasine, and a clause of warrandice except-
ing from it the contract of feu.
On this precept Beison took sasine, wljich was duly recorded,
and in 1737 he expede a Crown charter of resignation and confirm-
ation, proceeding upon the procuratory in Stewart's disposition to
Wardlaw,— on that of Wardlaw to John Dewar, — and oh that of
James Dewar to Betson himself, contained in the disposition of
1735, whereby all these dispositions and infeftments were con-
firmed ; but no notice was taken of the feu-contract ; and on the
2d of May 1737 Betson was infeft in virtue of the precept of
sasine contained in the charter.
In 1749 Betson, in implement of a previous onerous contract,
disponed the lands, with procuratory and precept, and clause of
absolute warrandice, to his eldest son, David Betson secundus,
who was immediately infeft on the precept.
By David Betson secundus the lands were disponed in 1787 (also
with procuratory and precept, and clause of absolute warrandice)
to his son, David Betson tertius, who at the same time took sasine
on the precept, and duly recorded it ; and on the 2d of June 1813
he expede a Crown charter of confirmation, confirming the ^rhole
titles by which the lands had been transmitted since the date of
the Crown charter in 1737.
Having got involved in pecuniary difficulties, David Betson
tertius granted (previously to the confirmation, but in the course
of the same year) a disposition, containing precept of sasine, in fa-
vour of trustees for his creditors, on which they were infeft. His
estates having been afterwards sequestrated under the Bankrupt
Act, the voluntary trustees, with his consent, disponed the
lands in favour of Walker/ the judicial trustee, who was infeft in
October 1817. Walker having died, the lands were, by special
decree of adjudication, transferred to his successor Black, who ex-
pede a Crown charter of adjudication and confirmation in favour
of himself as trustee, confirming the disposition by David Betson
tertius to the voluntary trustees, and also that by them to Walker,
and relative sasines. The precept in this charter was allowed to
remain open ; and after the death of Black, and also of another
trustee, the lands were, by the usual decree of adjudication, with
the charter, transferred to Grieve, who had been appointed trus-
tee. Having been sold by public roup to the suspender, Grieve
offered to him, a$ a title, an assignation to the unexecuted precept
of sasine in the Crown charter of adjudication, and delivery of
the whole titles back to 1737. After, however, the suspender
had paid part of the price, he discovered the existence of the feu-
" contract and isfeftment in favour of E avid Betson primus in
COURT OF SESSION. 471
1780 ; and he then presented a bill of suspension as of a threatened
charge, in which he contended,
1. That as the dominium utile had been thereby separated from
the dominium directum, and as no consolidation had ever since
taken place, the dominium utile or property still remained in
hsreditate jacente of David Betson primus, and therefore the
title which was offered to him was merely a conveyance of the.
dominium directum or superiority ; and,
% That as the bankrupt David Betson tertius had a son;
he might, by serving himself heir to David Betson primus,
and passing over his own father and other ancestors, make up
titles to, and carry off the property ; or this might be done by his
creditors!
To this it was answered,
1. That as the feu-contract must be held as having been de-
livered up to David Betson primus at the date of the disposition
to hitn in 1735, and as he and his successors had since that period
possessed the lands on titles ex facie absolute, that contract was
extinguished by the negative prescription, and the right to the
lands fortified by the positive prescription ; and,
£. That even if the lands were to be considered as still in
haereditate jacente of David Betson primus, the son of the bank-
rupt could not serve himself heir without becoming bound to im-
plement the several clauses of warrandice granted by his inter-
mediate ancestors.
The Court, on the report of the Lord Ordinary, refused the
bill of suspension. ,
Lord Balgray. — The very point in question was decided in a case
which has not been noticed by the parties, Bruce v. Bruce, 6th De-
cember 1770 (10805,) and which was affirmed on appeal. In that
case the Court were clearly of opinion, that although there had
been at one time a separation of the property and superiority, yet,
as the title conveying the superiority included the whole lands, and was
ex facie applicable to the property, and as there had been more than
forty years possession, this was a sufficient prescriptive title.
Lobj> Craig IE. — I certainly was of opinion that the objection was
good, and I rested it upon the case of Bald v. Buchanan ; but I have
been a good deal affected by the decision referred to by Lord Bal-
gray.
X-ord Gillies. — In the case of Bald there was no prescriptive pos-
session.
Lord President. — Independently of the authority referred to, I am
itis6ed that the objection is nol well founded. It is a mistake to
iy that a party is infeft in the superiority; he is not bo; he is
4T2 CASES DECIDED IN THE
infeft in the lamb themselves, and that itifeftment fcnu a good tale"
of possession, on which he may found prescription. So much U thn>
• • die case, that if a feu-right be granted, it merely creates a burden
which may be extinguished by a resignation ad remanentiam, with*
out any new infefuaent being taken, because the party is already in-
feft.
Sutpender** Authorities.— BM, March 8. 1780, (15064) ; Younger, Nor. 1665,
(109370
Charger** Jutf.orities.~8. Bisk. 7. 8 ; Ogilvie su Ogilvie, May 10. 1803, (not oep.)
J. Burness,~-D. Wilson, W. S. — Agents.
No. 244. Dr. J. Low and Others.— Sol-Gen. Hope— NT NM.
Ballinqall's Tbustees.— Baird — Small Keir.
Competing.
Feb. 27. 1827. Tms case involved merely a question of fact. The Lord Or-
2d Division. d*0*1? preferred BaUhigall's trustees for their total claim, but
Lord PitmUly, the Court found them entitled only to one half.
M'K.
J. Bowie, W. S-~J. Yopno, W. S*— Agents.
»
No. 245» H- Crow, Advocator. — Cockburn—Lumsderu
0
W. MDonald. — Rutherfurd.
Oath on Reference*— Oath on reference by a managing partner of a company that,
* to the best of his knowledge, a customer had paid all the articles fursisked to
' him, and that all the furnishings were entered in the company's book% although
* an error'may have occurred'— Held not exclusive of a claim for the price of fur-
nishings proved to have been delivered, but omitted to have been charged in the
books.
Feb. 27. 1827. Gow, as partner of, and having right to receive and discharge
the debts due to the concern of Alexander Reid and Company ,
Ld. Cringletie. brewers in Edinburgh, raised an action before the Sheriff against
M'K. M'Donald, a spirit-dealer, for payment of four half hogsheads of
ale said to have been furnished to him on the 10th of April 1821,
and omitted to be charged in an account subsequently rendered
and paid. It was established by the proof led by Gow, that, on
v the day in question, eight half hogsheads had been delivered to
M'Donald., while only Jbur were charged against him in the books
of the company. McDonald then made a reference to the oath of
Reid, who had been the managing partner of the concern ; and he
having deponed ' that M'Donald paid the whole ale furnished to
4 him by A. Reid and Company, to the best of deponent's kpow-
COURT OJ? SESSION. *7»
1 ledge/ and also that, ' to the best of hit knowledge* all the ate
< sold and delivered by Held and Company to M'Donald was *&.
1 gularly entered in the books of Reid and Company, although
< an error may have occurred, but he is not sensible of any such
1 error,9 the Sheriff assoilzied M'Donald.
Crow thereupon brought an advocation, in which the Lord Or-
dinary found that Reid's deposition * is not exclusive of the claim
' for payment of four half hogsheads of ale furnished by A. Reid
' and Company, and omitted to be charged to him ;' and that
IfDonald was liable for the price accordingly. The Court un-
animously adhered.
X Yoxni Qr-A. Phaesow, W. &— Agents.
G. Mickle, Suspender.— D. qfF. M<mcrAff—Sandford. No. 24&
C. Barnett, Charger.— Jeffrey— G. Napier.
This was a claim of damages by Barnett against Mickle tot Feb. 98. 1827.
an alleged violation of a charter-party by the latter, and which Jw DmBI01f,
depended on a matter of fact. The Judge-Admiral decerned Admiralty.
against him, but the Court suspended the letters simpHciter. H.
*
A. M'Ihtyr*-- G. and W. Napiab, W. S*-Ageijts.
J. M'Culloch, Suspender. — Skene — Whigham. , No. 247.
A. M'Nilidge, Charger. — Jameson.
Process — Poinding. — An arresting creditor haying raised a summons of forthcom-
ing, concluding for decree against the arrestee, to which die common debtor was
caJJed ; and decree having been pronounced against the arrestee and the com-
mon debtor for his interest ; and horning having been raised thereon, and a
poinding executed of goods in the possession of the common debtor, which
were afterwards sold to a third party; and decree for their value having been ob-
touted by the poinder against that party, who brought a suspension; on tha
ground that the poinding was inept, in respect it was not competent to poind
the good* on a mere decree of forthcoming against the common debtor for his
interest ; the Court, in the special circumstances, repelled the objection.
Ok The 4th of April 1822, M'Nilidge obtained a decree before Feb. 38. 1827.
the Sheriff of Wigton against John MDowall for a debt of ,£26. i^l^^.
14s-, with expenses. In virtue of this decree he arrested in the Lord Eldin.
hands of one Stewart, as indebted to M'Dowall ; and he then D.
raised s* summons of forthcoming before the Sheriff, in which,
after narrating the decree and arrestment, he concluded thus : —
* Therefore the said Hay Stewart, (in whose hands the said ar-
' restioent Wfes used,) defender, ought and should be decerne4
174 CASES DECIDED IN THE
' and ordained to mate furthcoming payment and deliverance
* to the pursuer of as much of the sum and others so arrested in
* the hands of the said Hay Stewart, as will completely satisfy
rand pay the pursuer the sums of money, principal, interest,
4 expenses, and dues of extract, contained in the decreet and
- * diligence before narrated." There was, however, no conclusion
against M'Dowall, who had been only mentioned in reciting
the decree, and the Will merely bore an border to cite ' thede-
* fenders.'
. Decree, in terms of the conclusion to make forthcoming to the
extent of the debt and expenses, was pronounced against Stewart,
and against M'Dowall for his interest, and against the latter person-
ally for 30s. of expenses. On this decree of forthcoming M'Ni-
lidge raised letters of horning, which, after reciting it, proceeded
thus:-— * Our will is herefore, that in our name and authority ye
' command and charge the said Hay Stewart, arrestee, and John
( M'Dowall, common debtor, for his interest, personally or at their
' Respective dwelling-places, to make furthcoming payment and
c deliverance to the complainer of as much of the sums of money
' and other effects arrested in the said .arrestee's hands as afore-
* said, as will pay the whole of the sums of money before sped-
' fied, excepting the expenses of process and the dues of extract-
' ing ; and that ye also charge the said common debtor to make
' payment to the complainer (the said charge to be also person-
< ally or at his dwelling-place) of the said sum of 25s. of expenses
* of process of furthcoming, and 5s. 4d. as the dues of extracting
' the said decree therein.'
Under these letters M'Nilidge, in June 1828, executed a poind*
ing of the household furniture of M'Dowall, which was in his
own possession. But, immediately thereafter, the mother of
M'Dowall, designing herself liferentrix of the house in which
he resided, and stating that he was owing a rent of i?20* pre-
sented a petition to the Magistrates of Stranraer, praying for a
sequestration and warrant to sell. Sequestration of the furniture
was awarded ; and no appearance having been made, warrant was
granted on the 24th of June to sell on the 28th. On the former of
these days, M'Nilidge had reported his poinding to the Sheriff, and
got a warrant of sale; and having discovered the proceedings before
the Magistrates, he applied to them, stating that Mrs. M'X>owa)l
had no title to the house, and that no rent had ever been pay-
able, and praying for interdict, or that she should be ordained to
lodge in Court the proceeds of the sale. The Magistrates granted
warrant to intimate this petition to her, and appointed her* before
carrying the sale into execution, to produce her title. On the
COUBT OF SESSION*. 475
same day, however, the effects were exposed to public sale in one
lot, and sold to the suspender M'Culloch for £dO. Intimation*
of the order of the Magistrates was also made ; but whether this
was before or after the sale, did not appear. A multiplepoind-
ing having then been raised before the Magistrates by Mrs.
M'Dowall, relative to the balance of the proceeds after paying the
rent and expenses, and in which she represented that she was not
liferentrix, but executrix of her husband, the Magistrates found
her liable only in once and single payment, and appointed parties
to lodge their claims ; but no further procedure took place. At
the. same time M'Culloch presented a petition, stating that Ke
had purchased the effects, but that M'Nilidge was threatening to
sell them under the warrant of sale from the Sheriff, and praying
for an interdict. According to a rule in the Burgh Court of Stran-
raer, he lodged a bond of caution to make the goods, or their price,
forthcoming to the extent of the debt, in the event of its being
found that he had applied wrongously for interdict. TJie Magi-
strates granted interdict; but afterwards found that Mrs. M'Dowall
had no title to apply for sequestration and sell the effects, and
recalled the interdict applied for by M'Culloch. M'Nilidge then
moved them to find the bond forfeited, and decern against
M'Culloch to make the goods » forthcoming, or to pay the debt
of £26. 14s. and expenses, which they accordingly did, and at
the same time conjoined all the processes which related to the
subject.
M'Culloch having been charged on this decree, he brought
a suspension, in which he contended,
L That as there was no conclusion in the summons of forth-
coming against M'Dowall, the common debtor, it was not compe-
tent to pronounce any decree against him ; and at all events, as
the letters of horning proceeded upon the decree of forthcoming,
which was directed against the arrestee and only against M'Dowall «
for his interest, it was not competent to attach the furniture of
M'Dowall, which was not in the possession of the arrestee, but
of M'Dowall himself, and therefore the diligence was inept ; and
consequently M'Nilidge had no title, as a poinding creditor, to
apply for a forfeiture of the bond, and to insist in the charge ;
and,
2. That the proceedings before the Magistrates were irregular,
.as they had conjoined processes, some of which were out of Court,
and others were between different parties, and had on M'Culloch's
own petition decerned against him; and therefore the charge
which rested on these proceedings could not be sustained.
To this it was answered,.
40% CASES DECIDED IN THE
, L That as the diligence proceeded on a debt due by ITDowaU
himself, M'NiKdge had a good title to poind hid effects; and that
as the diligence could not have been objected to by him, and as
M'Culloch was a mere interposed party, set forward by M'Dowall
to attempt to defraud M'Nilidge, he was barred from objecting
to the diligence ; and,
2. That by the nature of the application to the Magistrates by
M'Culloch, he agreed that decree should be pronounced against
him in terms of his bond, if it should be found that he had wrong-
ously applied for interdict; and as it was found that he had
done so» no objection could be stated to the regularity of the pro-
' cedure.
The Lord Ordinary ' repelled the pleas stated for the sus-
' pender, that the charger1* diligence, and the proceedings befiae
* the Magistrates of Stranraer, were inept or irayaUr, and re-
* nritted the case to the Jury Court C and Ae Court, after enter-
taining much doubt as to the Ngularifty of the diligence, but con-
sidering that the case aeen&ed involved in fraud, adhered.
R. Welsh,— J. Morison, — Agents. s
No. 248. Eabl of Stai», Pursuer.—!). ofF. Manor Aff—H. J. Roberta*.
Eabl of Staie's Trustees, Defenders. — Sol.-Gen. Hope-
Murray.
TWirf.— A party having fey * trust-deed conveyed his whole funds, intemiarf pro-
ceeds thereof, to trustees, to be vested in lands which were to be annexed to his
entailed estate f and the heir-at-law and of tailzie having claimed the interest of
. the ftind not invested in land from and 'after the expiration of a year from the
death of the truster; and the Court of Session having assoSsied the trustees fans
the claim, and the House of Lords having remitted to take the opinion of all the
Judges, the Court, on advising these opinions, adhered.
March 1. 1827* John Eabl of Staib made an entail of his lands of Coir
1st Division, <P*hasen and others in Scotland, and thereafter, on the 18th tf
Lord Eidin. December 1815, he executed a trust-disposition and deed rf
D* settlement in the Scottish form, by which he conveyed his whdl*
estates, real and moveable, (excepting those included in the ea-
tail,) to trustees, for payment of hts dfebts, and of eertaid special
legacies, and of any other he might afterwards bequeath. There
the& waa the following declaration :-— < And after my dbbts and
6 legacies are all paid, and a sum set apart for payment of the
' attMftities, or the same are otherwise well secured, I appoint my
.' said trustees and their foresaids to lay out the maiimeot the
' trust-funds, and interest and proceeds thereof, in purchasing
* lands in the shires of Wigton and Ayr* or atewartry of Kirk-
COURT OF SESSION, m
4 cudbright, dnd at the sight atod with the advice and consent of
* the Lord President of the Court of Session, and of his Majesty'?
' Advocate for Scotland for the time being, to annex the same to
' my entailed estate, by taking the right* and securities of the
( lands so to be purchased, to the same heirs of tailzie, and under
< the same conditions, provisions, clauses irritant and resolutive^
' contained in the disposition and tailzie of my lands of Cul-
* quhasen and others executed by me ; and I appoint my said
' trustees and their foresaids to expede charters and infeftments
' thereon in favour of the heirs of tailzie, and under the condir
c tioos foresaid, and to get the dispositions thereof recorded in the
1 register of tailzies ; and for the more regular management of the
' said trust, I hereby authorize and empower the said trustees to
' appoint cashiers and factors under them, and to give salaries to
' each of them, and such gratifications to any other persons that
« may be employed by them in relation to the premises, as they
* shall think fit' The deed concluded by nominating the trustees
to be his executors.
Thereafter, in 1819, he made a will in the English form, by
which he bequeathed certain legacies, one of which was not to be
payable for six months after his death, and then the deed bore—
* And as to all the rest, residue, and remainder of my personal
' estate in England, which shall not consist of real or Government
* securities, I do direct my executors to convert the same into
* money, and after payment of my just debts, to invest such money
' in Government securities ; and I hereby give and bequeath all
c audi stock, together with all other stocks, funds, and securities
< of which I may be possessed at the time of my death, to such
' uses and for such purposes as I have, in and by a certain deed
4 and writing prepared according to the Scotch form, executed
' by me, and bearing date the 18th day of December 1815
' years, declared of and concerning my personal estate ; and as
* to all estates which at the time of my death shall be vested in
c me upoi\ my trusts whatsoever, or by way of mortgage, I do
' hereby give, devise, and bequeath the same unto the trustees
< there named.'
I^ord Stair died: on the 1st of June 1821, without heirs of his
body, and the trustees thereupon took possession in virtue of the
truafcdeed. His heir-at-law, both in his real and personal estate,
was John William Henry Earl of Stair, who was also his nearest
heuvnude of tailzie aod of provision, and aa such was served and
retoured to the lands embraced in the entail*
In November thereafter, (being about five months after the
death of the late Earl,) the present Earl raised an action, in which,
478
CASES DECIDED IS THE
after founding on the trust-deed and relative will, and stating
that he had right to the interest of the capital sum left by the
late Earl, amounting (after deduction of debts and legacies) to
i?200,000, from and after the period of his death, he concluded
that the trustees should be ordained ' to hold just count and
■•' reckoning with the pursuer for the whole interest, dividends,
' and proceeds of the real and personal estate of the said John
* Earl of Stair, that has arisen from and since the said 1st day of
* June last, or that may arise thereon,' and to make paypient ac-
cordingly. In defence, die trustees maintained, That tjie claim
wa9, from the nature of the deed, unfounded, and that at all
events they had not been guilty of any undue delay. The Lord
Ordinary and the Court assoilzied them on the 12th of February
1828 ;* and this judgment was affirmed by the House of Lords
on the 7th of March 1825, on the ground that the demand had
been prematurely made.
Lord Stair then raised another action against the trustees, sub-
suming ' that the pursuer, as heir of entail aforesaid, is entitled
to the whole interest, dividends, and profits arising from the
said real and personal estate, from and after the 1st of June
1822, being twelve months after the death of the said Earl of
Stair, and in all time thereafter during the life of him the said
pursuer, until the said real And personal estate be invested in
manner directed by the foresaid trust-disposition ;' and conclud-
ng, that the defenders should be decerned and ordained * to bold
just count and reckoning with the pursuer for the interest,
dividends, and proceeds of the real and personal estate of the
said John Earl of Stair, that have arisen from and since the
said 1st day of June 1822, or that may arise-hereafter thereon,
until the said real and personal estate be invested in manner
aforesaid, and to make payment to the pursuer of the balance
that may arise on such accounting, or otherwise to .make pay*
ment to the pursuer of the sum of <£10,000 annually, aye and
until the termination of the foresaid trust, and the said defenders
be discharged of their actings and proceedings under the same.'
In defence, the trustees stated, That it was Lord Stair's inten-
tion, declared clearly and legally, according to the law of Soot-
land, that his trustees should lay-out the residue of the trust*ftmd,
and whatever interest should arise from the trust-fund, while
under their management, as an accumulated sum in the purchase
of lands ; that no charge of mora attached to them, for although
£$5,000 of the .£200,000, being the amount of the fund, was
• See ante, Vol. II. No. 187.
i- *
COURT OF SESSION. 479
•
*uiibvBSted; yet that had not happened from their neglect, but
from the impracticability of procuring an eligible investment in
the limited district pointed out by the deceased.
The Lord Ordinary, on hearing parties, found, « That no in-
tention is indicated by the settlement of the testator to tlie effect
that the trust-estate was to be enlarged by accumulation ; that
four years haying elapsed since the death of the testator, it is
presumable that sufficient time has been allowed for the purchase
of land to be entailed according to the direction given by him ;
and in respect of the delay that has taken place in making these
purchases, and that there is no law. or equity for subjecting the
pursuer to a loss of the whole proceeds and issues of the fund
unemployed in consequence of such delay, that it is the duty of
the trustees, and that they are bound by law to give a reason*
able indemnity to the pursuer for the loss which he has sus-
tained, and is likely to sustain, by such delay ; and therefore ap-
pointed the pursuer to give in a condescendence of his claim
against the trustees upon that ground/
But the Court altered, and assoilzied the trustees on the $lst of
February 1826, « in respect that the testator has directed that
* the whole of the produce of the trust-estate, both principal and
' interest accruing thereon, shall be laid out in the purchase of
' land ; and that the present is the first attempt made in Scotland
' for having any part of the trust-estate allotted to the heir in the
* mean time, under such circumstances ; and also in respect there
' has been no undue delay upon the part of the trustees in laying
* out the trust-funds, as appointed by the truster.**
Lord Stair having appealed,
The House of Lords ordered, • That the said cause be remitted
* to the Court of Session in Scotland, to review generally the in-
( terlocutor complained of ; and it is further ordered, that the
' Court to which this remit is made, do require the opinion in
* writing of the other Judges of the Court of Session on the
' whole matters and questions of law which may arise in this
* cause, which Judges are so to give and communicate the same ;
' and after so reviewing the interlocutor complained of, the said
' Court do and decern in the said cause as may be just/f
In consequence of this order, the written opinions of the Judges
were taken, and the Court thereafter by a majority adhered.
Lords Justice-Clerk, Glenlee, Pitmilly, and Nkwtok, de-
livered this opinion : — In delivering an opinion * on the matters and
• See ante, Vol. IV. No. 316.
t See Wilson and Shaw's Appeal Cases, 34th May 1826, p. 421.
VOL. V. 8 H
480 CASES DECIDED IN THE
1 questions of law which- occur in this esse/ to begin By writing •
what we conceire to be the regulating principles of decision in gene-
ral in all such cases.
The general rule must be, to be guided }>y the will and intention
of the testator or truster in every case in which his intention is
either clearly expressed, or can be legally inferred from the terms of
the deed. Hence flows the rule which, we apprehend, would be
followed in this country, as it is said, in the pursuer's Case, to be in
England, that * when there is a trust, that is always considered as
' done which is ordered to be done/ The existence of this rule is
surely a strong proof that the intention of the truster must form the
regulating principle of decision.
We next observe, that in the law of Scotland there is no general
rule of equity, so far as we know, fixing any particular period of
time, from the death of the truster, at which the interest of trust-
funds must be paid to the heir. Such a rule might, on the one hand*
be attended with a certain degree of convenience ; while, on the
other, we should find it very difficult to adopt any one period aa ap-
plicable to all cases, however varied from each other in their circum-
stances. But we are not aware of the existence of any such rule ;
and we doubt the powers of the Court, consistently with the law of
Scotland, to foL any such.
Accordingly, the Lord Ordinary in this case, by whose interlocu-
tor the trustees were found to be under an obligation to indemnify
the pursuer for the loss sustained by him, has not rested this obliga-
tion on any general rule of equity ^applicable to all cases of trust ; but
on the special circumstances occurring in this case, ' that four years
' having elapsed since the death of the testator, it is presumable that
' sufficient time has been allowed for the purchase of land.' The
pursuer's claim is thus put on the delay which has occurred in this
particular case.
Whether this principle can justly be applied in the circumstances
of the present case, is a point on which we shall afterwards say a
few words. At present we readily admit, that there is no doubt of
the existence, in the law of Scotland, and in the practice of this
Court, of the principle referred to by the Lord Ordinary. When-
ever a case can be made out of great delay on the part of trustees,
beyond the period contemplated in the trust-deed, from whatever
causes the delay has arisen, the Supreme Court may interfere with
its equitable powers, to prevent the heir from suffering loss, contrary
to the manifest intention of the truster ; and this may be done either
by giving the heir the interest of the trust-funds, as a surrogalum
for the rents, on the principle referred to in Lord Alloway's mter-
locutor in the former action between these parties, or in the shape
of damages, on the principle recognised in die interlocutor of Lord
Eldin above noticed.
Since, therefore, the purpose and intention of the truster mi
COURT OF SESSION. 481
forte the itgidriliag principle of decision, ire proofed, in the next
place, to remark that the intention of the truster, that his heir shall
draw the interest of the trust-funds, or a certain annuity therefrom
during the period that may elapse before they are appropriated to
the purchase of land, is sometimes directly expressed by a clause to
this purpose in the deed ; or this purpose would perhapa be legally
inferred from the truster fixing, in pointed terms in the trust-deed,
a precise period for the appropriation, after which, if the funds are
not actually appropriated, it may be presumed (and this seems to be
taking the most favourable view for the heir) to have been intended
that his heir should enjoy the interest of the trust-funds till an ap-
propriation takeStplace. To such a case as this last supposed the
maxim already referred to may, in our opinion, be applied in favour
of the heir, that, when there ia a trust, ' that is always considered
' as done which is ordered to be done.'
In the present case, die trust-deed does not destine the interest
of the trust-funds, or any part of diem, to the pursuer, by any direct
and positive conveyance to this purpose. It is necessary, therefore,
to consider whether the pursuer's claim is supported by a declara-
tion in the trust-deed, that the appropriation of the trust-funds shall
take place at a certain fixed period of time.
We are humbly of opinion that the clause in the trust-deed will
bear no such construction, if regard is had to the principles on which
similar clauses in other trust-deeds have been uniformly interpreted.
We think it evident that the clause on which the question turns
leaves a ccfiskleraMe latitude of time in the discretion of the trustees,
and it also appears from other .clauses in the trust-deed, and relative
settlement, that the truster contemplated the elapse of a much longer
period than that which is mentioned in the conclusions of the sum-
mons, or even than the period which has yet run from the truster's
death, before the appropriation of the whole of the trust-funds could
take place.
The clause referred to is in these words :— ' And after my debts
c and legacies are all paid, and a Bum set apart for payment of the
* annuities, or the same are otherwise well secured, I appoint my said
< trustees, and their foresaids, to lay out the residue of the trust-
* funds, and interest and proceeds thereof, in purchasing lands in
* the shires of Wigton or Ayr, or stewartry of Kirkcudbright, and at
' the sigbt,and with the advice and consent of the Lord President of
' the Court of Session, and of his Majesty's Advocate for Scotland
' foe the time being, to annex die same to my entailed estate,' &c.
This clause does not bear that the appropriation shall take place
immediately after the debts and legacies are paid, or as soon there-
after as possible j— it does not contain any expressions (such as occur
in other trust-deeds) which may, in some degree, limit the discre-
tionary powers of the trustees. On the contrary, aU that it said is,
that the trustees shall lay out the money, after the debts and legacies
*h2*
482 CASES DECIDED IN THE
are paid, which is little more than saying that this shall not be done
before the debts and legacies are discharged, and leaves great latitude
to the trustees.
And truly the occasion for such discretionary powers being Tested
in the trustees was urgent. Large sums of money, amounting, it is
said, to about £200,000, were to be employed in the purchase of
land, and' the purchases were- to be confined to three counties. It
was quite impossible that this could be done immediately, after
the payment of the debts and legacies, or immediately alter the lapse
of a year from the truster's death.
Accordingly, the truster evidently contemplated the elapse of a
longer period. By bis English will he directs his executors, * after
* payment of my just debts, to invest such money in Government
' securities ; and I hereby give and bequeath all such sUH^c, together
( with all other stocks, funds, and securities, of which I may be pos-
' sessed at the time of my death, to such uses, and for such purposes,
4 as I have in and by a certain deed and writing, prepared according
* to the Scotch form, executed by me, and bearing date the 18th day
' of December 1815 years, declared of and concerning my personal
' estate ;'— and by the trust-deed, ' for the more regular management
* of the said trust, I hereby authorize and empower the said trustees
' to appoint cashiers and factors under them, and to give salaries to
* each of them, and such gratifications to any other persons that may
' be employed by them in relation to the premises as they shall think
'fit.'
It appears to us to be a principle established in the practice of
our Courts, to interfere with the discretionary powers vested in trus-
tees acting under trust-deeds only in very particular cases, and when
it is made evident that the heir is suffixing a disadvantage, contrary
to the intention of the truster.
On the whole, then, when we apply to this case the principles
on which alone a Court of Equity can in this country interfere in
such a case, viz. that the truster has intimated his purpose in favour
of the heir's claim,* and that the appropriation of the funds haa been
delayed beyond the period contemplated by the truster, we are
humbly of opinion that no sufficient grounds for the interference of
this Court are made out, and that the interlocutor of the Court ought
to be adhered to.
Lords Meadowbank, Mackenzie, and Medwyn, delivered this
opinion : — In giving an opinion on this cause, we think it best to
begin by taking, first, a more abstract case, and considering what
appears to be the law of Scotland applicable to it. The case we
take is this : A. B., mortis causa, dispones property to trustees, and
directs them to turn the property into money, and then to employ
it, with all interest or profits arising upon it, in purchasing land in
Scotland, or in a certain county or counties, and to dispone this
land, under strict entail, to a certain series of heirs. Supposing
COURT OP SESSION. 483
these circumstance*, we shell then suppose that the trustees of A. B.
sitting fairly, and not negligently, takes certain time to turn the pro*
perty into money, and a certain time to turn the money into land, and
to convey it under entail as directed, but do not take more time than
may fairly be presumed to bare been contemplated by the granter of
the trust-deed, as likely to be occupied in such operations.
In these circumstances, we inquire, Has the disponee or institute
of the entail any claim for interest or profits accruing on the property
or money while in the hands of the trustees? Can he claim the
profits or interest from the death of the truster, or from the time of
the conversion of the property into money* or from any arbitrary
period ? Now, we cannot see any principle on which any such claim
can be supported. It seems to us directly in the face of the will or
intention of the truster, who, contemplating the elapse of such por-
tions or portion of time, and the consequent acquisition of profits or
interest by the trustees, did not direct the payment of these, or any
part of them, to the first disponee or institute of entail, but, on the
contrary, did direct the employment of them in the purchase of land
to be entailed. This seems to us free from any doubt.
But let us suppose, further, that while the trustees of A. B. are
still acting fairly, and not negligently, nevertheless, from emergent
circumstances, the time taken by them in converting the property
into money, or in purchasing the estate to be entailed, turns out to
be certainly much greater than can be fairly presumed to have been
contemplated by the truster, — Can we still say that the disponee of
entail is to have no claim for payment of any part of the profits or
interest? Put the case, for instance, that the property to be turned
into money is mercantile stock of a particular kind, of which it hap-
pens, in a way there is no reason to think was contemplated by the
truster, that a glut of long continuance occurs in the market ; and
then, that the direction being to buy land in one particular county,
it turns out that there already exists a similar trust for the acquisi-
tion of land in that county, with ampler funds, and more enlarged
powers,— or a very opulent family determined to buy up land there,
whereby it is not possible for the trustees of A. B. to convert the
property into money, and get land fit for an entailed estate in that
county in less time than forty or fifty years,— in such a case, Can
we say that the first person or persons favoured under the trust are
to have no remedy at all ? We do not see any necessity for this.
We think that the rule of equity comes in, viz. that where the
means adopted by a testator turn out inadequate or unfit, and are
likely to produce a result beyond all question contrary to his inten-
tion, and which, if he could have foreseen it, the object he had in
view shows he would have specially provided against, a remedy
ought to be given, by the .adoption of some other expedient or ar-
rangement, bringing things more nearly to what he did intend ; and,
in the application of this rule, no arrangement seems so good as that
484 CASES DECIDED IN THE
of giving to tbe disponee or heirs of entail, not the visual interest
of the trust-funds, !mt such a sharer of the profits or interest accruing
after a certain time as may be, in fair preemption, equal to tbe
rents which it appears certain the grantor of the trust intended and
contemplated that they should receive from the entailed estate in
the same time. This, we think, is manifestly better than forcing the
trustees to violate the true meaning of the truster 's directions, by
selling or buying at an enormous disadvantage, or not acquiring
proper subjects for entailing. It is true, that, in older to warrant
this remedy, a clear case must be made out; bat if that be done,
we do not see why a remedy should be refused. It is, we think,
not necessary to inquire whether the trustees ought to grant this
remedy at their own hands, or wait till they have the authority of
this Court. We incline to think, that, if they did it at their own
hands, they would be justifiable ; but this we think clear, that, in
any case of real unaffected difficulty, trustees may, for their own
' safety, refuse to yield to a doubtful claim, till they shall be ordained
by a competent Court to d6 so.
We are the more confirmed in the above opinion, because we see
it admitted on all hands, that in a third view a remedy of this very
kind must be given, viz. where the ultra delay arises from tbe fraud
or negligence of the trustees. And yet wo see no reason for this,
except that it is clear that the testator did not calculate upon such
fraud or negligence •, for, if he had chosen to say expressly that it
was his will that the trustees were absolutely to take their own time,
however long, according to their own free pleasure, without ques-
tion by the disponees or heirs of entail, who were to have right to
nothing but the entailed estate, at whatever those it should happen
to be acquired, we do not see how any redress against their ^elay
could be obtained by these parties, being merely gratuitous claim-
ants under the will of the testator.
It is said there is no Scotch decision admitting such remedy where
the trustees act fairly ; but as little do we see any Scotch decision
refusing it. And as to practice extrajudicial, we doubt if there has
been much, or indeed any, in clear cases of a gross and psdpaMe
ultra delay, where yet the trustees were acting fairly. Such cases
are, we imagine, rare ; and we have no idea that there have been so
many of them as to constitute an extrajudicial practice of smy great
weight.
Our view, therefore, of the law of Scotland is, that, under such trusts,
wherever it can be shown with certainty that a delay, much beyond
the contemplation "of the granter of the trust, has been or in to be
incurred, whether by the fraud or fault of the trustees, or by ether
causes, a remedy must be given, by payment to* the dispontee w heirs
of entail of a portion of the profits or interest accruing during; tbe
time of such delay, but that no remedy can be given without
COURT OP SESSION, 469
pvsof of such excessive delay ; and that the onus of showing such ex-
live delay lies on the claimant of the remedy.
But then it is said, that in England the difficulties of extricating
ofaiimilwkindbnvebeen fbtind bo mtokrable, that the Court
sf Chancery has been obliged to fix an arbitrary time, after which the
profits er interests are paid over to the party in whose favour the
trust is directed to be executed; and it has been suggested that we
should consider whether in Scotland a similar expedient ought not
to be adopted. We speak on this subject with diffidence ; but we
think we see enough in the reported speech of a noble person to in-
duce us to doubt whether die English Court of Chancery was ori-
ginally led into that course by any absolute necessity of a judicial
kind, and whether the expediency which did exist was not rather for
the consideration of the Legislature; and at any rate, we humbly
conceive that no such necessity prestos upon us in Scotland. ' vWe
are relieved from it, we think, by the consideration that we are not
called on to interfere at all, except where the excess is plain and
great, and the remedy clear. 15 that is not made out, we ought, we
think, net to interfere* If it be made out, we cannot see tbat our
interference will be attended with extreme difficulty; nor do we
think that, under such a rule* there is any danger of excessive liti-
gation in such cases* Indeed, we humbly conceive, tbat cases of the
kind now before us are by no moans of a nice and delicate nature, if
we are to be guided in them, as we think we must be, by regard to
the intention of tho truster. They are cases in which we think we
may safely say that tho truster has no very curious or anxious atten-
tion to the immediate interests of the dispones, or any particular heir
or heirs of enuuL His grand object, like that of all entailers, is the
preservation of his own name, and his own arms, and the endurance
of an estate of his own forming, in a line of his own dictating. If he
attain this object, he cares very little about the interests of indivi-
duals. Such being in general the mind of the truster in such cases,
it must next be admitted that such views are certainly legal in Scot-
land. Entails are expressly authorized by statute, and a person hav-
ing no right of succession, but by virtue of a trust, cannot possibly
object to the conditions of the gift, nor pretend to complain, tbat
what the grantor of the trust chooses to give him is not equitable.
The intention of the truster being, therefore, the ruling principle in
such cases, and that intention being in general of the nature above
mentioned, it seems quite plain that there can be no ground for our
interference in execution of such trusts, fer the purpose of preventing
hardship to the dispones, or any individual heir, unless the occasion
and extent of such interference are made certain, and plain. We can-
not think, therefore, that we shall find any difficulties in such cases,
and assuredly we have found none yet sufficiently great to induce us,
acting only as a Court of Justice, to do a thing so very strong, as to
fix one arbitrary period to betaken as a presumptive term in all cases
486 CASES DECIDED IN THE
of this sort without discrimfaatioiL If this be expedient, and fit to
be done at ail, at least we think it ought to be done by an act of the
Legislature.
Having said so much on the law generally, we come now to this
particular case, on which our opinions are to be given. In this case,
then, it appears to us quite clear, in the first place, that the truster,
the late Lord Stair, has directed the profits and interest accruing,
down to the time wiien the land to he entailed shall be purchased, to
be employed along with the original capital in that purchase. Not-
withstanding that, however, if we thought there was sufficient evi-
dence, either of any failure of duty on the part of the trustees, or of
any emergent circumstances, by which, without any .blame on their
part, the acquisition and conveyance under entail of land to the pre-
sent Lord Stair was delayed much beyond the contemplation of the
' grantor of the trust, we should think that relief ought to be given,
by ordaining a payment to be made to the pursuer in the mean while
out of the interest of the trust-funds ; but we see no sufficient evi-
dence produced or offered to that effect. On the contrary, when we
consider the largeness of the funds which are directed to be invested
in land ;— that this land is limited to three counties only ; — that it is
to be annexed to the estate of the truster, already entailed, by new
deeds of entail, which are to be approved of by the Lord President
and his Majesty's Advocate, we are strongly persuaded that the pro-
gress of the trustees has been quite as speedy aa the truster contem-
plated, and that the pursuer has suffered no hardship whatever to
which the truster did not fully mean to expose him. Indeed the case
is one where there is singularly little reason to complain of any hard-
ship from the fair execution of the trust. The length of time taken
up, in order to the full conversion of the funds, has been required
mainly from the greatness of them, the institute having the benefit
of the gradual conversion as it goes on.
It has been asked, What must have been done if the conversion
of the funds had taken so long a time, that the institute had died be-
fore receiving any benefit from it? Looking to the mind of the
truster, as a Scotch entailer, we should say that, provided the trust
was fairly executed, and executed without any excessive emergent
delay, it was a matter of indifference to him whether the first insti-
tute, or any particular heir of entail, ever derived any benefit from
this trust or not. But considering the powers which the trustees
have of converting the funds by degrees into entailed land, there
was little chance of this happening, nor has it happened, nor can any
thing like it happen now. In short, supposing we were told that,
among the papers of the late Lord Stair, there bad been found a
writing by himself, in which he had traced out prophetically, hut ex-
plicitly, what he expected to be the course and progress of the dis-
posal of his funds; and supposing that, without being shown
evidence, we were asked to guess what time he had set down
i
COURT OF SESSION. 48?
%
likely to be employed by. hit trustees in Testing these funds in land,
and entailing it as directed, we should certainly guess, not a shorter
tune than that which has been employed by them, but quite the con-
trary ; and, in that view, we see no principle of the law of Scotland
on which we are authorized to interfere at all in this case*
Lords Alloway and Eldin delivered this opinion : — This is a ques-
tion of much importance, and, in the absence of all precedents, our
judgment must be entirely founded upon the equally sure and often
preferable basis of principles. By applying these to the case now
before us, we shall be enabled to pronounce a. sound decision.
It is the duty of every Court to give effect to the precise words
of the testator ; and if Lord Stair had used expressions calling upon
his trustees to accumulate the interest which might arise from the
funds in their hands, previous to their finding an opportunity of pur-
chasing lands, there would have been an end of the question. But
Lord Stair has not done so.— (Their Lordships then quoted the
clauses in the Scotch and English deeds.)
Thus the whole personal funds, by .the English deed, were to be
applied precisely in terms of the trust-deed of 18th December 1815,
executed by the Earl in Scotland. And after all his debts and lega-
cies were paid, and a sufficient sum was set apart for payment of the
annuities provided by him, Lord Stair appointed his trustees to lay
« out the residue of the trust-funds, and interest and proceeds thereof,
in purchasing lands in the three counties therein mentioned. , But
he, neither if* the trust-deed 1815, nor in his last will, 5th January
1819, makes any provision for the accumulation of his funds, if his
trustees should not invest them in land at the time directed by him ;
nor does he make any provision for this accumulation, if, by any un-
foreseen delays, the money should not be invested in land for many
years.
The Earl of Stair died upon the 1st of June 1821, five years and
a half ago ; and it appears that a considerable sum still remains to be
vested in lands. We conceive that the settlement contains no direc-
tions for the accumulation of the interest since the period that all his
Lordships debts and legacies were paid; and that the question
comes to be, Whether this interest must be accumulated, and in-
vested in the purchase of land, to be entailed in the same terms with
his estate of Culquhassen? or, Whetfcs . .life interest from that period
does not belong to the pursuer, the present Earl of Stair, who, be-
sides being the testator s heir of line and executor, is also the first
heir of entail, and as such must have drawn the rents and the bene-
fit of the estate acquired by these funds, if they had been invested
in lands at the period appointed by the late Lord Stair? In short,
'Whether the pursuer is not entitled to claim the interest as a sur-
rogatum for the rents which would at that period have accrued to
him?
There is no doubt that the pursuer is the favoured person to whom*
488 CASES DECIDED IN THE
the trustees were bound to convey the estates, in ten* of the en-
toil. Many circumstances may occur, which, without the slightest
blame being imputable to the trustees, might postpone the invest-
ment of these funds. They are limited to purchase lands in three
counties, and they could not purchase diem anywhere else. It might
not have been possible for the trustees, therefore, to invest that capi-
tal in land at the period appointed. But even supposing that they
could have purchased the lands, many reasons, derived perhaps from
the high prices demandedror from the well-founded expectations of
acquiring lands at much lower prices, more contiguous, and better
suited to the entailed estate of Culquhassen, may have rendered it
wise in their estimation to refrain from purchasing; and there can-
not be a doubt that these trustees might have most justly followed
their own notions of prudence, and that no Court had any power to
control them in the fair exercise of such discretion. Yet, could it
be maintained, that £100,000, which would be the accumulation
arising in ten years upon this fund, must have been applied in en-
larging die estate to be bought for the posterior heir* of entail, and
that the pursuer, the testator's first favoured heir of entail, his nearest
relation, and the representative of his peerage and dignities, was thus
to be deprived of this large sum, and of any benefit whatever arising
from this fund during all that period?
It is quite possible that the trustees might wisely exercise their
discretion during a period equal to the value of the present Lord
Stair's life, and by this means they might deprive him, the favoured
heir, of the great benefit which was devised to him as the first
of entail, although he had even for many years survived the
when these funds were ordered to be invested in lands. Indeed, he
has already survived that period nearly five years.
This question does not depend upon the trustees being guilty of
improper delay. Whether the delay arose from absolute necessity,
from the wise exercise of their discretion, or even from culpability
on the part of the trustees, the effect is precisely the same to the
favoured heir. , From whatever cause it arose, the favoured heir
cannot be deprived of the benefit intended for him by his ancestor;
and certainly the general question comes to be considered in a far
more favourable shape for the trustees than that in which it would
have occurred, if culpable delay had been alleged against them. The
Court must have then entered into a minute investigation of sul the
circumstances ; and if there was culpable delay, the trustees might
have been punished by paying the loss out of their own pockets.
But this question does not depend upon any culpability whatever on
the part of the trustees ; for, however innocent and unavoidable the
cause may have been, the pursuer, as the next heir of entail, has been
deprived of those rents which he would otherwise hive drawn, if
the funds had been invested at the period appointed. Indeed, if he
be not from that period allowed the interest of the funds as » atirro-
' COURT OF SESSION. 489
gatum fertile rente, the posterior heirs of entail will draw a benefit
from the interact of part of the fond having been accumulated for
many yean after the entailer had appointed his trustees to invest
this fund in land, to be entailed as directed by him.
It seems to be perfectly dear, therefore, that the rules of equity
must in such a case interfere, and that no Court, where justice or
equity is administered, can permit the benefit provided to one heir,
on account of the will not being executed at the time appointed, to
be transferred to another set of heirs, who bad merely a postponed
interest to the heir first preferred.
In England, where there exists a separate Court of Equity* the
rules for carrying the intentions of the testator into effect may be
more precisely defined than in this country, where equity and com-
mon law are administered in the same Court. It is impossible, how*
ever, to doubt that the same great principles of justice and of equity
must regulate the decision of the Courts in both countries. We
consider this to be a Scotch question, since it occurs with regard to
a deed ordering lands to be purchased in Scotland. But where the
will of the testator, from any cause over which he had no control,
has not been carried into execution at the time appointed, justice
requires that it should receive the same effect as if it had been exe-
cuted at the time appointed, so as to secure te the favoured heir the
benefit that he would have drawn from it, and to exclude the other
heirs from the benefit which they can only claim from the settlement
not having been executed at the period appointed. . This Court has
repeatedly acted on such principles.
Thus, during this very session, in the case of Dick against Gillies,
30th November 1826, where the testator had appointed his trustees,
after his death, to sell his heritable subjects, consisting of certain
shops in Glasgow, without specifying any precise period for the sale,
which seems to have been left te the discretion of his trustees, the
Second Division of the Court, in a question which occurred with re-
gard to the succession of his representatives, were unanimously of
opinion that die shops must be held as sold, and as moveable pro-
perty, although not actually sold by his trustees at the death of one
of his representatives. In short, the Court in that case were ot opi-
nion that every thing must be held as done which the testator has
ordered to be done, and that the respective interests of his heirs and
their representatives must be regulated accordingly.
The tempus a quo the funds are ordered in this case to be untested
in the purchase of lands, is upon payment of the debts and legacies.
It is not denied that the debts were paid soon after the Earl's death,
and that sums were set apart for payment of the annuities. Forpay-
xneas of several of the legacies no time is mentioned ; therefore, by
tbe law of Scotland, debts and legacies might have been exigible six
months after Lord Stair's death ; but by tbe law of England, where
X^ord Stair resided and died, and where the will was executed in the
490 CASES DECIDED IN THE
English form, legacies, for the payment of which no time is fixed,
are not exigible until twelve months after the death ; so that the le-
gacies bequeathed by the English will were not payable until twelre
months after Lord Stair's death, except one of them, which was de-
clared to be payable at six* months. In this way, we conceive that
the tempus a quo the trustees were to lay out the residue of the
trust-funds, and interest and proceeds thereof, was at the period of
twelve months after Lord Stair's death* There is no after period at
which the trustees are directed by the deeds to lay out the residue
of the trust-funds, and interest and proceeds thereof, in purchasing
lands, and there is not a single word, either in the trust-deed or in
the English will, which can by any construction import an appoint-
ment to accumulate the interest and proceeds after that period :—
Therefore, without being at all influenced by the general rule laid
down in the Court of Chancery in England, of which we shall after-
wards speak, the period at which the trustees must apply the trust-
funds, interest and proceeds thereof, to the purchase of lands, is
twelve months after the death of the testator, that being the time at
which the executors were bound to pay the legacies, and at which
period they were all paid. Although Lord Stair did not expressly
say, that twelve months after his death they were to apply the trust-
funds, interest and proceeds, in the purchase of lands, the terms be
has made use of are equivalent in meaning, and entirely of the same
import. He appoints the residue of his funds, interest and proceeds
thereof, to be invested in lands, after the payment of his debts and
legacies ; and as this period did not, and legally could not, arrive
until twelve months after his death, this must be held as the period
a quo that investment was to be made, in the same manner as if he
had actually fixed that period totidem verbis to be twelve months
after his death.
Suppose that Lord Stair had fixed two years after his death as
the period for applying the residue of his funds, interest and pro-
ceeds, in the investment of lands, is it possible that, without any
stronger authority than the present deeds, the trustees could defeat
the benefit intended for the favoured heir, and accumulate the sum
for years beyond that period for the benefit of the future heirs ? ft
from any cause whatever, they were not able to purchase the estates,
and put the favoured heir in possession of the rents, they must at
least account to him for the interest of the sums they were appointed
to invest in land, as the only surragatum for the rents, of which be
would have been in possession had the funds been invested in lands
at the time appointed; yet we can make no distinction betwixt such
a case and the one which has actually occurred.
With regard to the English cases, so much founded on by the
parties, we conceive that these are not authorities sufficient to war-
rant the proceedings of this Court, which must be directed by their
own laws and their own rules. But, in the absence' of almost all
COURT OF SESSION. 401
precedent in the discussion of this general question, we may refer
to the English authorities, merely as lights to guide us when we
have little of our own. The reasoning of able and intelligent Judges
in another country, upon cases similar to those under discussion in
this Court, has always received its due consideration. In this view,
the English authorities are entitled to great weight in this question ;
and we certainly feel more confident in the opinion we have formed,
as it seems so completely supported by the most enlightened Judges
in dispensing those great principles of justice and equity in the Court
of Chancery, which cannot be confined to that Court, but must apply
to every Court entitled to exercise equitable powers ; and it cannot
be denied that this Court has in that respect the same powers in
this country that the Court of Chancery has in England.
If we are right in these observations, as to the tempos a quo the
trustees were appointed to invest the money, the decision of this
question would not depend upon the general rule adopted in Eng-
land, as to allowing interest to the heir upon such funds as were ap-
pointed to be invested in lands one year after the death of the testa-
tor, instead of allowing the interest to be accumulated; although, if
that rule be not directly contrary to our own rules and precedents,
we think there is so much expediency in it, that it ought to be adopted.
It would save an immense deal of expense, delay, and litigation in
every case ; because, unless some general rule be adopted, every case
of this nature must become the subject of minute and intricate in-
vestigation, in order that the Court may determine, in each special
case, the time when the funds might have been invested in lands,
and, of course, the tempus a quo the heir would be entitled to draw
interest. This would be exposing trustees to such a troublesome,
dangerous, and intricate discussion, with regard to the discretion
which they had exercised, that no human being could ever be pre-
vailed upon to execute so dangerous and troublesome an office, es-
pecially as the consequence of the Court finding that there was any
culpable delay seems almost necessarily to be, that they must sub-
ject the trustees personally to the loss which either the one party or
the other had sustained from that delay.
Now, it appears to us that this Court, upon the supposition of
expediency alone, have gone further in establishing rules for their
own practice, in such matters, than even the rule which seems to be
adopted in the Court of Chancery in England. This Court cor-
rected the old practice of allowing executors to pay to the creditor
primo venienti, and have absolutely debarred them from paying until
six months after the debtor • death. Erskine, iii. 9. 45. This is ex-
pressly enforced by an act of sederunt, 28th February 1662.
But further, with the view of saving litigation and investigation,
with regard to every fund under judicial management, and with re-
gard to the period when persons acting under judicial authority are
bound to stock out the money under their management, this Court
40* CASES DECIDED IN THE
has declared the* €*ery and* pwton upliaing rents 4* •Btoil ^ents,
or Which, by diligence, he might have recovered, is liable for the
same, and for the interest thereof, from the period of one year after
the rents or annual rente which he should bare uplifted became
due ; and this is enforced by two acts of sederunt, Slat July 1690,
and 13th February 1730, $ 1.
We conceive, therefore, that thia Court has the power to adopt
euch a general rule* in this case also, as has been acted on in the
Court of Chancery in England, and that it would be a most benefi-
cial exercise of a principle already applied to more difficult cases.
No Inference can be drawn from die former decision of thia case
»
in the Outer-House, as confirmed by the First Division, and by the
House of Lords ; because that decision was pronounced within five
months after the death of Lord Stair, and the interest was demanded
from the time of bis death. But Lord Stair had not appointed4 his
trustees to invest the residue of his funds, and the interest and pro-
ceeds thereof, at the period of his death, but after the payment of
his debts and legacies.
Lord Cbinolbtu delivered this opinion:— The late Earl of Stair,
on the 18th December 1816, executed a settlement, whereby he
disponed to his trustees therein named, and the acceptors and sur-
vivors, or survivor of them, ' all and sundry/ &c«— (His Lordship
then quoted the clauses founded on.)
~ No term of payment is mentioned in Lord Stair's settlement for
payment of his legacies; but aa they were to be paid partly out of
funds situated in England, and to be collected by an executor resi-
dent there, the soonest that they could be paid would be after the
lapse of a year, that being the time allowed by the English \tiw to
the executor to collect the funds, and inform himself of the debts
due by the deceased.
In this situation* Lord Stair ordered bis debts, legacies, and an-
nuities to be paid, and a fund secured for the last; and, * after my
' debts and legacies 'are all paid, and a sum set apart for payment of
' the annuities, or the same are otherwise well secured, I appoint
' my said trustees, and their foresaids, to lay out the residue of the
* trust-funds, and interest and proceeds thereof, in purchasing lands,'
&c-
From this it appears to me to be quite evident that Lord Stair
had not in contemplation any accumulation of his funds, except by
N the interest due on them at his death, and after that, till the time
hie debts and legacies should be paid, which, as already mentioned,
was at the end of one- year after his death* These are the interest
and proceeds to which he must have alluded. If he had any thing
else in contemplation, he would not have ordered land to be bought
till after his annuities ceased; but, on the contrary, he understood
that a fund was to* be set apart for them, or that they ware to be
otherwise secured, and the. land to be acquired aa soon an posriWe.
COURT OP SESSION. 40»
And indeed ** bar* a practical proof tbeMhia* was the opinion of
the trustees themselves, ae they purchased land to the value of
£136,000 within six months after Lord Stairs death. .
The present Earl claims the interest of the fund remaining unem-
ployed foes the. end of the year after the death of his predecessor ;
sad I cannot accede to the idea that he shall not he entitled to it,
en any of the grounds pleaded by the trustees of the latter, tic. That
the principal and interest of the late Earl's funds must be accumulated
and laid out on the purchase of land, at whatever period that land
nay be acquired; or, 2d, That there has been no delay by the trus-
tees in making purchases ; or, Sdly, That such demand is in any way
contrary to the principles of the law of Scotland.
It it be thought imperative that the capital with interest accumu*
lating on it, till land be bought, shall absolutely be employed in the
purchase* there is no time Within which it can be fixed that the pur-
chase shall be made, The lands in this case were to be purchased
ia Ayr, Wigton, or Kirkcudbright. It might have happened that
lands could net be bought to the extent of £200,000 in these
counties. The very title of the earldom may become extinct before
such lands might be found, end none of its heirs derive benefit from
what was intended to aggrandise them* The estate of Stair maybe
devised to heirs-male, and the present heir or Us successor may have
no son, and a number of daughters for whom be has to provide, and
would be prevented by being deprived of the funds which he would
have had if land had been purchased. But the defenders do not
carry the matters so far t They admit, and the Court has agreed to
this, that if delay can be shown on the part of the trustees, the heir
must be entitled. to redress. Now, this appears to me to be a ma-
terial part of tins argument Lord Eldin has found that there waa
delay, and the Court have found that there was no delay, in acquir-
ing land ; but there are no facte established on which the one finding
or the other can be supported. There is no statement of the funds,
and the manner of their employment; none of the land that might
have been bought at a reasonable price, and was not purchased ;
no reason waa given by the trustees why the whole fund has not
been employed for its destined purpose. It therefore to me appears
impossible, hoc statu, t6 say whether there has been delay or not.
Indeed the action is not laid on any such ground. The present Earl
of Stair does not allege it. He proceeds on the principle, that his
predecessor had no view of accumulating Jiis funds after the payment
of his debts and legacies, but intended lands to be acquired at the
end of the year after his death ; and, consequently, that as the pre-
sent Earl would have been entitled to the rents if land had been
then acquired, he ought to be entitled to draw the interest of the
money. But admitting that delay shall be the rule, and farther ad-
mitting the trustees to be guilty of delay, it seems quite undeniable,
that the period when the delay commenced would reejiire to be as-
GASES DECIDED IN THE
certained; anddrom that period downwards, the Earl would either
be entitled to damages from the trustees for their misconduct, or his
Lordship would be entitled to the interest of the accumulated sum,
on the principle that, from the moment the delay took place, the
money should be held to have been applied to the purchase of land,
although it was not so applied. There is no other alternative.
Either the trustees must be held personally liable to' indemnify out
of their own funds the Earl, or the accumulated money must be held to
have been laid out on land, and the interest of it given as a surro-
gatum for the rents. 1 am inclined to think that this latter view
would be adopted by the Court ; for it would be a strong measure
to make trustees personally liable, even though they might be coo*
eidered to have been too tardy, unless it were clearly established that
such delay was not innocent on their part*
Bat this establishes the great and leading principle which I espouse,
namely, that if a period can be pointed out, at which the money should
be held to have been employed on die purchase of land, the person
entitled to its rents is entitled to the interest. And it appears to be
of the utmost importance to avoid investigations, whether there has
been delay or not, if that be possible. I can imagine a case where
it would not be possible ; for instance, if a man were to leave a large
sum of money to trustees, directing them to apply it to the acquisi-
tion of land, to be settled on his heirs, when they saw suitable pur-
chases, and, in the mean time, directing them to accumulate the
capita] and interest. In such a case, it is obvious that there would
be a discretionary power vested in the trustees to retain the espial
and accumulate the interest ; while, at the same time, it is equally
obvious that they could not retain it for ever. The question then
might occur, Whether delay had taken place? and I can hardly imagine
a predicament more disagreeable and difficult to the Court, and all
parties concerned. It would be necessary to send to a Jury an
issue, Whether delay had taken place or not? in which there must
be inquiries, Whether land had been in the market which the trustees
could have bought ? How the funds had been employed in the mesa
time ? Whether they could have been recovered, and made tangible
or not ? Whether the land could have been bought at reasons We
prices or not? and at what periods ? All which embrace investiga-
tions of long, delicate, and disagreeable consequences, attended with
litigation and expense, and involving the conduct and character of
the trustees. If all this be absolutely necessary, there is no help
for it ; but if it can be avoided, it will surely be desirable, and I think
that it can and ought to be avoided in- every case where it can be
discovered, or it can be presumed, that the will of the testator is
that his money shall be employed at a particular period, and by
adopting the rule of law, to hold the money as employed at that
period, although it truly happens to%e still in the bank. By as-
euming this principle, the trustees will indemnify the heir, by paying
COURT OF SESSION. 495
him the interest as a surrogatum for the rente of lands. Nothing
will be demandable from their private funds* They need not be
importuned either by the first heir or his successors to purchase land.
They will be left to their discretion in collecting the trust-funds,
some of which may be lost by precipitate demands ; some locked up
in sales of bankrupt estates, and many other embarrassments. They
will not be led to make inconsiderate purchases of land at times when
prices may be high, or to give high prices because sellers know that
the trustees are obliged to bay land. Every disagreeable investiga-
tion will in all probability be avoided. Trustees will not be called
to defend themselves by entering into details of their conduct, and
showing that they have behaved with honour and integrity in the
tree spirit of the trust committed to them. They will feel themselves
at much greater freedom to act than if it be decided that they may
hold both principal and interest of the fund destined to the acquisi-
tion of land, till such time as they think proper to employ the money
in that way; and they will preserve the ties of friendship of the per-
sons for whom they act, instead of becoming the objects of suspicion,
jealousy, and ill-will.
I am therefore humbly of opinion that it is highly expedient to
adopt the rule, that when it appears from a sound construction of
any man's trust, that he intends bis fund destined for the acquire-
ment of land to be employed in that way at a certain period, and
the rents to be given to his heir, this Court, as a Court of Equity,
should hold the money as employed at that period, though not so, and
award to die heir the interest* of the unemployed fund becoming due
after that period, as a surrogatum for die rents. And I think it
peculiarly fortunate that the House of Lords should have recom-
mended to us to consider how far that system, so manifestly expedient,
and repressive of litigation, is consistent with Scotch law ; and on
this point I think that there is not only nothing to prevent it, but
that it is agreeable to the practice of the Court in other cases.
In the first place, it is admitted that this is the first case in which
that doctrine has been pleaded, or any heir has called on trustees to
account, oft the principle contended for in this action, for^he interest
of unemployed trust-funds appropriated to the purchase of land.
There is therefore no precedent against it to struggle with ; and it is
surely no reason for not acting, that it is the first time the Court has
been called on to act. The cases of Reid v. Coates, 10th March
1809, and one therein referred to, Speed v. Speed, have been quoted
as in opposition to this doctrine. But tbey appear to me no way
.hostile, and, on the contrary, are in favour of the principle which I
would introduce. These decisions proceed on die principle that the
will of die testator is to be executed wherever it can be discovered
what it is ; and, accordingly, the Court resisted the demand of the
pursuer in both of these cases, because they thought it not consistent
with the nature of the trust. I am decidedly of opinion that the
voi, v. 2 i
496 CASES DECIDED IN THE
will of the truster met be executed; but the question is, Wkt
that will ?
2dly, To regulate the application of trasVueaey, and the conduct
of trustee*, is in perfscfr consistency with what the Com! have done
on other occasions. We ell know that an execntov of a wfll has
been always, mul ia atill considered, manly at a trustee for behoof
of ell concerned* We also know that, by our old law, as executor was
eotitled to pay to the firaf creditor who obtained a decree against
him for payment of the defunct's debt, though such decree might be
within a month of his death, thereby preferring those who weae ap-
prised of the debtor's death, and lived near the Courts of Justice, to
these who, living at a distance, were ignorant of the debtor's death,
and could not obtain a decree against has executor; farther, that an
executor was entitled to retain the defunct's funds in payment ef any
debt due to himself by the defunct ; and many other practices were
competent which were censurable ;— all ef which defects were cor-
rested by thie Court by die Act of Sederunt, 88tb February 1662,
which enacted, That no executor should pay any creditor of the de-
ceased sooner than the end of six months from his death, and that
be could not retain the funds in payment of any debt due to himself
, by the deceased* in preference to such creditors ae shall have cited
him within the six months in an action for payment of their debts,
$c. Similar regulations have been adopted for die government of
tutors, curators, and factors. Since, then, the Court introduced rules
for regulating the conduct of legal trustees, why shall it not adopt
one for the government of voluntary trustees, when every
tien of expediency and equity requires them to embrace such a
sure?
I am therefore humbly of opinion, 1st, That wherever this Court
can ascertain the period at which a person in his settlenient has ap-
pointed his funds after his death to be employed in purchasing land
for the benefit of his heir, it ought to hold the money, though not
employed at that period, as laid out, and from that date allow the
heir to draw the interest of the capital, ay and until it be expended
in the acquisition of land.
2d, From the settlements of the late Earl of Stair, it ia evident
that bis Lordship wished, that after payment of his debts and legacies,
and provisions made for that of his annuities, his foods, pitaripal and
interest, then accruing, included, should be employed in thepmchase
of land, to be entailed on his heir, die present Bar! ; that the legal
period for paying his debts and legacies is one year after his death,
at which period, too, his Lordship contemplated provision being made
for paying his annuities; and consequently his wash was, that at the
end of a year after his death, land, if possible, ought to be purchased.
If he bad ordered the residue, and faterest and proceedVof hfcfttnds,
to belaid out on land at the end ef two yean after his death, then
I think it indisputable that he did not intend accumulation of Inter-
OOUBT OF SESSION. 407
est, with oapital, after tfce end of two years; and «a he ordered it
to be sooner laid out* die tame coaclueioo follow*,
And* 3d, That the present Earl ought to be found entitled to draw
the interest, from a year after bis predecessors death, of all his funds
applicable to the purchase of land, until the money either was or
shall be hereafter so employed ; and on these principles the trustees
ought* to be ordered to give in a statement of accounts, showing what
is due to the present Earl.
Lords President, Craigik, and Baagray merely stated that
they adhered to their former opinions, concurring with the majority.
Lord Gillies stated that he had altered his opinion, and now agreed
with the minority, being satisfied that the words of the deed applied
only to the prior interest, and not to the future.*
Firmer'* AutAerities.—CBmpMl, Jane 0. 176S, (7040 sod 14708) ; Ramsay, Jan.
1738, (Elchies's Session Papers, Adv. Lib. Vol. 12. p. 1 60) ; K. CoU. of Aberdeen,
Feb. 23. 1741, (Elchies, No. 11. Trust) ; Glenfarquhar, Nov. 1722, (Elchies's Ses-
sion Papers. Vol. 12. p. 13) ; 1. Karnes, Eq. p. 1. c. 3. $2; Hutcheson, July
12. 1791, (1. Vesey joa. 386); Helllagsworta, 6. Vesey Jan. 620; Pothtar,
PaswL Lib. 3ft. p. 1. u 1. p,8. * 1. Ait. 4; KtsreU, July 97. sad Dec. & 1801,
(6. Veacy jun. 52Q.)
M"Kbnzib and Innbs, W. S.— J. and A. Smith, W. S- — Agents.
Forbes" Trustees, Y?ur*um*--J$ffrey-+Tait, No. 249.
W. A. Welsh, Defender.— D. qfF. Mono-tiff*— Robertson.
Ten*r% Proving o/l— Circumstances in which, the Court decerned in a proving of
the tenor of a written cautionary obligation, although there was no proof of any
special casus amissionis.
In November 1815, an action ef count and reckoning was in- March 1. 1827.
atituted by Forbes of Culloden, and Mr. Tait, writer to the signet, 2d Divibiow
his trustee, against Dr. John Forbes, who had been appointed p.
by them factor on the estates of Culloden in 1810, concluding
against him for payment of a certain balance said to be due by
him, and containing likewise a conclusion to the same effect against
Welsh, the father of the present defender, under a letter and oh-
ligation alleged to have been granted by him to Mr. Tait, the
trustee, of date 7th July 1810* binding himself as cautioner for
Dr. Forbetvto the extent of J&100Q; but this letter was not re-
eked in the summons. Defences were given in by Dr. Forbes
onJj; and after some procedure, and the action having been
{raoaferred against the present defender on the death of his
■ ■ ii ■■ ■ — ■» i ■ i i i. ■ « m ■! ■ 1,1 i H ■ i ■ i i i i ■ ■ f i i^-^^— ■ mm— m i ■ ■
• For these opinions see Wilson and Shaw's Appeal Cases, 96th May IWfly
p. 418.
2i2
408 CASES DECIDED IN THE
father, decree was pronounced against both parties for a sum of
«£1975, the balance reported by an accountant to be due by Dr.
Forbes.
Welsh then gave in a representation, accompanied with de-
fences, stating that the letter of obligation by his father had not
been produced, but, at the same time, reciting verbatim a letter
as being the one founded on. The pursuer not having been able
to produce this letter, a summons was raised by Russel and
others, who were now Culloden's trustees, to have its tenor proved.
In this summons the casus amissionis was stated in the following
terms : — ' The letter and obligation aforesaid, granted by the said
c deceased William Welsh, was mislaid or lost by the said Craw-
c furd Tait in the multiplicity of business under his charge ;
* and owing to the great intricacy and confusion arising from the
' great' number of documents connected with and produced in
' the said process, and other relative proceedings, the said letter
( and obligation cannot now be found*'
The Court, having sustained the adminicles, allowed a proof,
from which it appeared that a letter of obligation in the terms
sought to be proved, and the same with that recited in the de-
fences, was inserted in the minute-book of the Culloden trust ; —
that, from entries in a ledger of writings in Mr. Tait's office, it
must have been so inserted previous to 1812;— -that another
copy, in precisely the same terms, was entered in his father's
letter-book by the defender himself, who deponed that he so
entered it in February 1815 from a scroll in the handwriting of
different persons, part of it being in his father's handwriting,
but without date or signature, although, under the entry in
the letter-book, there was marked the date in pencil, * Inverness,
< 7th July 1810.' It was also deponed to by Dr. Forbes, the
defender in the action of count and reckoning, that after he
had been factor for some time, he offered to procure a letter of
security for his intromissions to a certain extent from the late
Mr. Welsh, who was his father-in-law ;— that, in the month of
June 1810, he found upon his table a letter signed by William
Welsh, and addressed to Mr. Tait, which he delivered to Mr.
Young, partner of Mr. Tait, within three hours after he found it ;
— that he was acquainted with Mr. Welsh's handwriting, and
looked at the letter only cursorily, but that it did not strike him
that it was written by any other person than Mr. Welsh ;— that
the substance of the letter was, that the writer />f it bound him-
self as bis security to the extent of .£1000, on condition that there
should be a settlement of accounts every twelve months : and being
shown a copy of the letter as entered in the trust minute-book,
COURT OF SESSION. 499
he deponed that it was agreeable to his recollection of the letter
which he found on his table ; and he further deponed, that he
afterwards had a conversation with* Mr. Welsh about an obliga-
tion of cautionry by the latter for him as factor to Culloden, in
which conversation ' Mr. Welsh spoke of himself as bound in
' such obligation.' In addition to this evidence, Mr. Newton (who
had been an apprentice with Mr. Tait for five years from Octo-
ber 1812) was examined, and deponed that the impression on his
mind was, that he had seen among the Culloden papers a letter
to the purport of that 6ought to be proved.
No proof was led as to the casus amissionis ; and decree of
circumduction having been pronounced, a state was made up,
and the cause enrolled, when it was objected on the part of
the defender, That there was no special casus amissionis either
averred or proved, which, it was contended, was essential in a
proving of the tenor of any document of the nature of the
present, where the obligation constituted by it was capable of
being discharged by the mere cancellation or delivering up of the
document.
To this it was answered, That the necessity of proving a special
casus depended on the whole facts and circumstances of the case,
whether there was any thing in the conduct of the parties tending
to show that the document might have been cancelled and not
lost, and that in the present case the whole conduct of parties
evidently proceeded on a constant belief of the subsistence of the
obligation.
The Court, thinking that it would be satisfactory to have
evidence led of the circumstances, as set forth in the summons,
relative to the loss of the document, allowed the pursuers to give
in a petition praying to have the circumduction opened up, in
order to examine Mr. Tait and Mr. Young; but this having
been opposed by the defender, their Lordships found that it was
unnecessary to decide whether the circumduction might be opened
up, and decerned in the proving.
Loan Justice-Clerk. — This is a very important and delicate matter,
in regard to which it is necessary to look very closely into the au-
thorities ; hut I do think that there are passages in our institutional
writers, sufficient to warrant our decerning in this proving. Erskine
(4. 1. 54.) says, that ' in deeds which are intended to remain con-
* stantly with the grantee, or which require contrary deeds of re-
* nunciation to extinguish them, as dispositions, sasines, &c., or where
' the debtor who makes payment does not commonly choose to rely
' for their extinction on the bare cancelling of them, as assignations,
1 &c, a more general casus amissionis is sufficient ; insomuch that
500 CABE8 DECIDED IN THE
< most lawyer* are of opinion that it is etiffietent to libel that the
4 deed into lost anybow* even cesu Jbrtuito.' Banktoa (4. 49.) goei
•till further, end Stttfc (4* 82. 6. 7.) observes, * Bat where there era
' adminicles relating to the tenor produced* the casus amissionis will
' be sufficiently libelled that the writ was lost ; but, without these,
' some proof must be of the casus amissionis, as if the Lords require
' the pursuer to depone that the writ was lost.' — ' So, then, in pro*
1 bation of tenors, there must still be libelled a casus amissionis*
' But if that be specially proven, there need no adminicles ; and if
' there be adminicles as to the ordinar articles, there needs no further
' probation than what has been said of the casus amissionis. But
' the oath of a party is sufficient without both.' Now, in the pre-
sent case, there is a very peculiar circumstance, though the casus be
loosely libelled; for in 1815 an action was raised against Dr. Forbes
and Webb, founding on this letter. It is proved to have been inserted
in the sederunt«book of the trustees prior to November 1812, and
it is likewise inserted in a letter-book by the defender himself ia
the very terms sought to be proved. This makes it the strongest
proof I ever saw i* cases of this kind ; and the insertion of it by the
defender goes further than the mere proof of the tenor, as it shows
his wish to preserve it as a guide to himself as a binding deed. The
action then goes before an accountant, and after the balance due by
Dr. Forbes is ascertained, Welsh gives in defences, reciting the very
words of this letter, without an insinuation that it had been done
away, restored, or cancelled. This is real evidence that, down to
this period, there was no notion of its having been given up. Then
we have Dr. Forbes' evidence, from which I think there can be no
doubt that the letter was holograph of his father-in-law, who sent
it as the security for his intromissions ; and we have also the depo-
sition of Mr. Newton, that he thinks he saw a letter, of the de-
scription sought to be proved, among the Culloden papers, which
altogether brings forward that sort of evidence contemplated by Stair
and Baakton, as rendering it unnecessary to prove any special casus.
Further, I do not think that it is the usual mode of extinguishing
obligations of this kind, merely to deliver up or cancel the document.
No one would advise any thing but an express discharge, especially
when such near relations are concerned; and on the whole, although
I should have wished that Mr. Young had been examined, 1 am
prepared, in the peculiar circumstances, to decern in the proving.
Lord Pitmillt. — I concur in the opinion delivered. I have looked
into all the authorities quoted, and I have certainly got more tight
from Lord Stair than from the Decisions. It is dear that wheats*
deed is of a nature usually discharged by cancelling, as a biS, a spe-
cial casus must be proved, though otherwise rTmay not be required*
This is the general rule ; but there it a more general rule still, which
1s mis, that the whole circumstance* nrast be looked into, to see
whether or not there are sufficient ground* for hoMnta; that the deed
COUBT OF SESSION. 501
has never been given up, and just far the reasons given by Erakine,
when he says, * otherwise bonds truly paid might be again demanded
* from the debtor, as obligations still subsisting.' This is the only
realett fbt requiring a proof of toe casus, and it leads us to inquire
whether, on the whole, the circumstances warrant us to hold that the
deed has been lost I will not go over the whole arcqmstances ; but
I am chiefly moved by that of an action founding on the letter having
been raised in 1815, and defences given in reciting the letter, and
not insinuating that it had been cancelled or delivered. There are
* other circumstances of a peculiar nature ; and though I should wish,
if consistent with form, still to have Mr* Young examined, at least
as a haver, I am satisfied that, even as the case stands, there are suffi-
cient grounds for decerning in favour of the pursuer.
Lord Allow ay. — I have come to the same conclusion, I also should
have liked to have had Mr. Young and Mr. Tait examined ; but, even
without that, I have no doubt, on the whole, that we are warranted
Co decern in the proving. It is not necessary to go oyer the prin-
ciples so well laid down by your Lordships, which all lead to this
— Is there a case made out, in the whole circumstances, to show
that the deed cannot have been delivered up ? For if a case can be
ahown where it may have been delivered up, I would require a
proof of a special casus. But the conduct of the parties here proves
it is impossible that the deed could have been given up. The ori-
ginal action, in which the late Mr. Welsh was called, was raised in
1815 when he was alive, and he survived a year, yet no defence was
lodged stating the deed to be cancelled ; then, when the extent of
Dr. Forbes' liability is settled, the present defender gives in de-
fences stating the precise words of the letter, which is proved to
have been inserted in the trustees' minute-book before 1812. It is
likewise proved to have been delivered by Dr. Forbes to Mr. Young,
Mr* Tait's partner y— it is seen by Mr. Newton in Mr. Tait's posses*
sion, — and what is very important, it is entered in Mr. Welsh's own
book, just about six months before the action in 1815 was raised.
In these circumstances, it is impossible to believe that h was can-
celled or delivered up, and there is not an allegation to that effect.
We know very well that small papers often go astray amidst the con-
fusion of processes, and it is only the other day that an important
document in regard to the case of the D. of Gordon v. Innes was
accidentally discovered, after having been missing for many years.
Though the decisions quoted hare had different results, they all pro-
ceed on the same principle of founding on the general circumstances
of the case, which, in the present instance, can leave no possible
doubt that the document sought to be proved has not been de-
livered up nor cancelled.
ursM^r*' JuthoHUe*. —4* Ersk. 1. 54 ; 4. Bank. 49 ; 4. Suir, 32. 6. 7 ; Cheyne,
March 1688, (15803); Mein, Jan. 21. 1063, (15789); Moffat, Jan. 3T. 1809,
<F«Cfc) v
50Z CASES DECIDED IN THE
Defender9* Autheeitiee.—t. Ersk. 1. £4 ; Kirctidy, July 31. 1687, (15786) ; Crap.
bell, Feb. 22. 1780, (15828); Marq. of Annandale, May 28. 1733, (1. Craigfe
and Stewart's Appeals, 108.)
Taits and Young, W. &— JS. Macbran, W. £L— Agents.
No. 250. " D. Gilchrist, Suspender.— -Matheson.
J. M'Gregor, Charger. — Jameson.
March 1.1827. Process— 'Previous Expenses. — The Sheriff of Sutherland
2d Division. having pronounced decree for certain previous expenses, a bill of
Bill-Chamber, suspension was presented, which the Lord Ordinary refused ; but
M'K. the Court, on consideration of the whole circumstances, remitted
to the Sheriff to proceed in the cause, reserving all questions of
expenses.
Inglis and Weir, W. S. — J. Macdonell, W. S. — Agents.
No. 251. W. Young, Pursuer.— FuUerton.
J. Robertson, Defender. — Skene — Marshall.
Agent and Client— Sequettration.— In an action by a law agent under a sequestra-
tion against a creditor for payment of his account— Held not a sufficient defence
that instructions had been given by the creditors to the trustee, and inserted in
the sederunt-book by the agent, to raise an action for a debt, and obtain a vendi-
tion of the share of a ship, which not having been done, the debt and price of
the share had been lost— there being no evidence that he had received instruc-
tions from the trustee to take such steps.
March 1. 1827. This was an action at the instance of Young, a writer in Kil-
2d Division. marnock, against Robertson, one of the creditors on the seques-
Ld. Cringietie. fated estate of M'Master, on which Smith, a farmer, was trus-
*F- tee, for payment of his business accounts, incurred as law agent
in the sequestration. The defences were,
1. That Young had agreed to charge according to the rates
adopted by the writers in Kilwinning, but that he had made out
his accounts according to the Kilmarnock rates, which were con-
siderably higher.
&. That he had neglected to sue for a debt due to the estate till
prescription had run, notwithstanding thete had been entries in
the sederunt-book, in his own handwriting, directing steps to be
taken for recovery of the debt, and notwithstanding alleged in-
structions from the trustee to that effect ; and,
3. That he had in like manner, and under similar circumstances,
neglected to obtain a vendition made out of a share of a vessel be-
longing to the bankrupt, whereby, on the shipwreck of the vessel,
the price had been lost to the estate.
In ansjwer, the pursuer denied the allegation as to the agree-
COURT OF SESSION. MS
ment regarding the rate of charges ; and as to Uie other two pomts,
he contended that the entries in the sederunt-book, being direc-
tions by the creditors or commissioners to the trustee, the pur-
suer was not bound, in consequence of them, to take any steps
without instructions from the trustee to that effect, which he de-
nied to have received, and that the creditors had recourse on
the trustee, against whom they had reserved their right of action
in auditing his states.
The Lord Ordinary found that there was no evidence of the
defender's allegations ; and as none were offered other than the
pursuer's oath, he appointed the defender to state whether he
meant to make a reference to oath or not.
Against this interlocutor the defender reclaimed, and contend-
ed that, in the circumstances of the case, the trustee being a
country man, necessarily unacquainted with business, the entries
in the sederunt-book by the pursuer himself were sufficient in-
structions for taking the steps which he had neglected ; but the
Court adhered.
A. H. Manners, W. S— Agent
F. Heddle, Advocator. — Gordon. jj0# 252.
C. Gahioch, Respondent. — R. Riddett.
Skerigr-Clerk— Statute 6. Gee. IF. e. 33.— Sheriff-Clerks not precluded by the
above statute from appointing deputies in circumstance* where that is necessary
for conducting the business.
«
By the 6th Geo. IV. c. S3, ' for the better regulation of the March 1. 1827.
€ Sheriff Courts in Scotland,9 it is enacted, ' That any person who 2n Division.
( has been appointed since the first day of August 181 4, or Lord Medwyn.
* who shall be hereafter appointed, a Clerk in the said Sheriff or B.
' Steward Courts, shall discharge the duties of the office person-
'ally.'
The advocator Heddle held the office of Sheriff-Clerk of Shet-
land under a commission dated in 1815, and containing a power
' to appoint deputies in the said office, for whom he shall be an-
' swerable, and to alter and change them at his pleasure.9 Hed-
dle was also proprietor of some land in Shetland ; and having oc-
casion to sue Garioch, one of his tenants, for payment of rent,
amounting to about £&, he raised a summons in the Sheriff Court
of Shetland, which was signed by Nicol, a person who had for
several years held from him a commission as Depute Sheriff-Clerk.
To this summons it was pleaded in defence,
1. That, since the passing of the above-mentioned statute, no
JM CASES DECIDED IN. THE
person was capable of doting* except the Sheriff-Clerk himself; or,
at all events* if there was an absolute necessity for another person
acting, he ought to be appointed by the Sheriff, and not fay the
Sheriff-Clerk ; add,
£. That it was illegal, Under the Act of Sederunt 6th March
1788, and as decided in the case of Campbell v. M'Cowan, for a
clerk of Court to bring an action of his own' before the Court in
which he must necessarily officiate as clerk. The Sheriffs Depute
and Substitute found, ' that thd summons in the present case is
* subscribed by a person not now qualified to act as clerk of Court,'
and therefore dismissed the action. Heddle then brought ao ad-
vocation, on the ground,
1. That the object of the 6th Geo. IV. was not to exclude the
acting by deputy where that Was necessary, bat merely to pre-
vent the abuses which had arisen from the Sheriff-Clerks making a
sinecure of the office, and that in the present instance it was ab-
solutely necessary to have recourse to a depute, as must abo be
the case in extensive counties, or in the event of sickness; and,
2. That the action here being against a tenant within the she-
riffdom, and for a sum which, from its amount, could neither be
sued for in the Small Debt Court, nor before the Court of Ses-
sion, it was impossible to bring it before any other Court, and that
all objection to its proceeding in the Sheriff Court was obviated
by the depute acting as clerk.
' The Lord Ordinary having reported the cause, the Court un-
animously instructed his Lordship to remit to the Sheriff to recall
his interlocutor, and proceed in the cause.
Loan Glenlee.— All that is said in the statute is, that the Sheriff-
Clerk shall do his duty. I cannot go so far, however, as to admit in
argument used at the Bar, that because there is no penalty provided
by the act, it cannot be enforced. If a petition and complaint for
disregarding the act be properly brought before this Court, we cer-
tainly will find means of enforcing it. AH that is intended by the
act is, that the Sheriff-Clerk shall not make a sinecure of his office,
and must boni fide do his duty ; but it was sorely never intended \»
disable him from appointing a deputy when absolutely necessary* ft*
in cases of sickness, great extent of county, Ac* It would fas quite
erroneous to find a depute disqualified to do that duty which the
principal cannot do, and there k no. case in which he ia mere called
on to name a deputy than where he himself is party, in a cause. It
is said that the Act of Sederunt March 6. 1783 precludes the She-
riff-Clerk from bringing an action in bis Own Court ; but that Act
of Sederunt relates solely to clerks being agents in their own Courts.
Loan Pitmilly*— I am entirely of the same opinion. The meaning
1
COURT OF SESSION, 800
of the statute w, that Shwriff-Clerks afcaB benft fide discharge in per-
son the duties of their office, bat not thet they shell be predated
from appelating deputies, where a necessity for doing so exists) and
accordingly the commissions granted since the passing Of the act con*
lain as formerly a power to appoint deputies. The admission by the
respondent, that the Sheriff might appoint a person to act as deputy,
destroys his own argument* since his interpretation of the statute
would prevent that also.
Lord Alloway. — I have no doubt on the subject*
Lord Justice-Clerk. — I also concur ; but I likewise agree with
what fell from Lord Glealee, that the act is not nugatory ; and that
If a Sheriff-Clerk appointed since August 1814 should attempt to
make a sinecure of the office, he will find himself in a very difficult
situation.
Respondents Autkorities.~kct of Sederunt, March 0. Ifr83; Campbell, July 10.
1834, (ants, Vol. Ill* No- 187.)
J. R. Skinner, W. S«— G. Munro, — Agents.
J. M'Bain and H. Arbuckle, Complainere.— D. qfF. No. 253.
Moncreffi— Ivory — Wilton. .
C. Ixxes, C. Thomson, and Others, Respondents. — Sol.+Gen.
Hope — Forsyth — Menzie*.
Bwrgh Rofui—PriKxs*— Mandates— >h petition sad complaint against fhe election
of Magistrates having been presented in name of a pajty who was a native Scots*
man, a resident burgeas, and a constituent member of the meeting for election)
but who at the date of the complaint was abroad, and no mandatory having con-
carrebV— Held<— 1.— That it was incompetent at his instance j — and,— 9.— That
a party who had appeared and litigated the cast as a respondent, could not sist
himself as a complainer.
Ok the 29th of September 1885, an election of Magistrates March 8. 1837.
and Council for the burgh of Queensferry took place, at which l divhiow
Arbuckle was chosen to act an proxy for one of the electors who j^ Medwyn.
was absent, and in which capacity he voted. Against the election H.
which was made, he and M'Bain (who alleged that he was a con-
stituent member of the meeting) presented a petition and complaint
on the 25th of November thereafter. A few days, however, after
the election, Arbuckle, who was a native of Scotland* and a resi-
dent burgess of Queensferry, went abroad in prosecution of his
business, and when the complaint was presented he was either in
France or in Holland* Against the competency of this complaint
at his instance the respondents objected, That as he was abroad at
the time when it was presented, and as neither any mandate had
been granted by hitn, nor any mandatory had concurred, it must
be dismissed ; and as the period had expired within which a re-
gular complaint could be received, it Was not now competent to
506 CASES DECIDED IN THE
sist a mandatory, nor was it a sufficient answer to say that Ar-
buckle had sanctioned the proceeding, and still adhered to it.
To this it was answered, That as Arbuckle was a native Scots-
man and resident burgess of Queensferry, and a constituent mem-
ber of the meeting, and as he had gone abroad merely in prose-
cution of his lawful business, and not animo remanendi, — and as
it was proved by a letter written by him while abroad in Septem-
ber to Mr. Gibson-Craig, writer to the signet, that he was anxious
that the complaint should be presented, the objection was not well
founded.
The Court, however* on the 11th of March 1826, ' dismissed
' the petition and complaint, in so far as it is made by Hugh Ar-
* buckle,7 and found him liable in one half of the expenses ; but
appointed Cases in relation to certain objections stated against the
title of M'Bain. Arbuckle then appealed, and the respondents
having obtained from M'Bain a discharge of the process, they
applied to the Court to dismiss it in toto ; but their Lordships
declined to write upon it, in consequence of the appeal. A few
days afterwards M'Bain gave a letter to his agent, stating that
the discharge had been impetrated from him, and that he still in-
sisted in the complaint.
Thereafter the House of Lords, on the 22d February 1827,
affirmed the judgment, and remitted the cause back to the Court
of Session, to proceed in the complaint at the instance of M'Bain.
When the judgment came to be applied, Thomson, who had
hitherto appeared as a respondent, moved to be allowed to sist
himself as a complainer, and appearance was also made for M'Bain.
The respondents then objected, That Thomson could not be
allowed to change sides; and that as M'Bain had granted a formal
discharge of the process, of which no reduction had been brought,
be was bound by it, and no regard could be paid to his letter.
The Court, after applying the judgment of the House of Lords,
refused, the motion for Thomson; and as M'Bain had been or-
dered to attend a committee of the House of Commons, and had
gone to London, they suspended the case as to him.
The Court were unanimously of opinion that the objection stated against
the competency of the complaint at the instance of Arbuckle
well founded ; but that they could not permit Thomson, who
not a neutral party, to sist himself as a complainer, after having all
along opposed the complaint as a respondent.
Retpondentt' JutAoritte*.— (1.)— Dundas, July 30. 1780, (8837) ; Davidson, Jaly
6. 1802, (8842) ; Cameron, Feb. 28. 1818, (F. C); Gray, Feb. 24. 1804, (No. 15.
App. B. Royal.)— (2.)— Bell on El. p. 493; Campbell, June 24. 1804, (F. C);
Grant, Feb. 29. 1821, (F. C.)
D. Wilson, W. S— Horns and Ross, W,. &— Agents.
COURT OF SESSION. 507
■
C. Girdwood and Co. Advocators. — D. cfF. MoncreiJf-—Pyper. No. 254»
Pollock, Gilmoue, and Co. Respondents. — Scl.-Gen. Hope~-
Henderson.
J. Wilson and Son, Respondents. — Monteith.
Sale— Landlord's Hypothec.-— Questions raised, but not decided,— 1.— -Whether de-
livery of part of a machine which a manufacturer was employed to make, and
for which a bill was granted, transferred the property of the part ;— and, — 2. —
Whether (supposing; it did not) the landlord had a hypothec over it for his rent
of the mill in which it was placed.
This was a special case, but in which two points of law were March 2. 1827.
raised and argued :— 1. Whether, when a manufacturer has been ln DlvIiloM#
employed to make a spinning machine, and he has delivered part Lord Eldin.
of it, and taken a bill for the price, the property of the part so de- 8,
livered is to be held as transferred, and so liable to be attached by
creditors ;— and, £. Supposing the property not to be transferred,
Whether the landlord has a hypothec over the part delivered for
payment of the rent. It appeared, however, from entries in the
books of Girdwood and Company, the manufacturers, that they
had regarded the property as transferred ; but while they main-
tained that such was not the meaning of the entries, and that in
point of law it had not been transferred, they alleged alternative-
ly, that, by a subsequent transaction with the creditors of the
bankrupt, it had been reconveyed to them. The Magistrates of
Glasgow, before whom the case originally came, found evidence
of the transfer of the property to the bankrupt, but none as to
the subsequent reconveyance, and pronounced judgment accord*
ingly ; and in an advocation the Lord Ordinary remitted sim-
pliciter ; but the Court, being satisfied that the subsequent agree*
ment had been proved, altered, found Girdwood and Company
entitled to the property, and remitted tt> the Magistrates to hear
further as to the claim of hypothec.
Advocator*' Authority.*— \. Bell, p. 106.
Bespondenis* Authorities. — (1.)— Stair, p. 131 ; 3. Ersk. 3. 2; 1. Bell, p. 89.—
(2.)— 2. Ersk. 6. 64 ; 1. Bank. 17. 10 ; 2. Pothier, p. 277 ; 2. Bell, p. 34.
Macmillan and Grant, W. S. — A. Patsrsox, — W. and A. G.
Ellis, W. S. — Agents.
508 CASE6 DECIDED IN THE
No, 255. Bai*p, Puwier^FPifcon,
Bis Creditors, Defmd^rs.^-Macfarlanc.
Cessio Bonorum.—A cessio refused to the lather of a Dastard child, who was in-
carcerated by the mother for payment of aliment.
»
March 2. 1827. Bai&p, ft day-labourer, having been incarcerated by the mother
1st Division °^ a ^>astar^ child, of which he was the father, for payment of ali-
ment, brought a process of 'cessio, in which he stated that he
had no funds ; that he was alimented in prison under the Act of
Grace by the mother ; that the only mode in which he could earn
any thing was by his exertions as a labourer, and that he was
willing to aliment the ch^ld out of his wages ; but that he could
not do so, unless he obtained the benefit of the process. To this
it was objected by the mother, That it had been settled that where
the father of a bastard child ia incarcerated by the mother for
aliment, he is not entitled to the benefit of the cessio. The Court,
after entertaining considerable doubts as to the principle, refused
, the cessio.
Defenders9 Authorities*— Ritchie, Dec. 20. 1811, (P. C.) ; M 'Caiman, Dec. 4. 1824,
(ante, Vol. UI. No. SB1.)
W. Mkhckr, W. S<— Ton and Wright, W. S,*-Agent».
No. 256. G. Cottov, VurnuGT.^—Soli-Gen, Jfope^-ffouston.
Mrs] Manuel, Defender.— D. qfF, M<mcreiff—Neo.v&.
March 2. 1827* This was a competition of titles for a small urban tenement,
1st Division. *n which the Lord Ordinary assoilzied the defender in respect
Lord Eldin. that the pursuer had shown no title to insist, and the Court ad*
s- hered.
» • *
J, and W- D JM9QK, W, S— W. SMjTi^—Agenta,
No. 257* J* BLAC*# Advocator.— Skene — A. ATNeUL
W. B»qw#, .Respondent. — Jeffrey — Jameson*
Process — Reparation — Slander.— 1.— A party held liable in damage* for defama-
tory statements made mala fide, and not pertinent in the course of judicial pro-
ceedings.—&— A sum of damages awarded in the Inferior Court modified in an
advocation, though no special plea of excess on the record, but merely the general
plea of none being due.
March 2. 1827. The advocator Black, an old man 75 years of age, and his
2© Division. **&** Mary Black, who lived together, executed a mutual trust-
Ld. Gringletie. deed and settlement, whereby they each conveyed all their pio-
M'K. perty, heritable and moveable, to the respondent Brown, a writer
COURT OF SESSION. 009
in Glasgow, and certain other pawns, as trustees for the life-
rent use of the survivor of the two, and for certain other pur-
poses after the death of the longest liver. The sister died in
March 1882, and, on the occasion of her funeral, Brown attended
with some other persona to take an inventory of has effects. After
making an inventory of the effects in her room, the persons pre-
sent were proceeding to the room of Black, when he interfered to
prevent them ; but after a scuffle, in which Black was thrown
down, and had three of his ribs broken, they entered his room
also, with the view of inventorying any articles there which might
have been the property of the sister. An inventory was accord-
ingly made out of certain sums of money, bills, and title-deeds
found in the sister's repositories, and articles of furniture, &a
said to belong to her. Brown and the others carried away thd
money, title-deeds, and bills, without leaving a copy of the inven-
tory with Black ; and two days afterwards they presented a peti-
tion to the Magistrates of Glasgow, setting forth that they were
also entitled to take possession of the furniture, &c. contained ill
the inventory,, which had been the property of the sister, and
praying fpr a warrant to do so.
In answer to this petition, Black contended that he was en-
titled to the liferent use of those articles which had belonged to
his sister, and he alleged that several of the articles in the inven-
tory belonged exclusively to himself. After some procedure,
the Magistrates found his property in these particular articles
established, but at the same time found that he was not entitled to
the* liferent use of the ipsa corpora of the articles of furniture be-
longing to his sister, but merely to the free yearly rent thereof, or of
the proceeds ; and in this judgment both parties acquiesced. About
two years afterwards, however, Black presented a petition to the
Magistrates, setting forth the circumstance of his sister's death,
and that, < immediately after her interment, the said William
* Brawn, aided and assisted by the said John M'Cubbin,' (another
of the trustees,) ' proceeded to take an inventory of the deceased's
* effects, along with all and sundry the title-deeds, vouchers,
< and other valuable papers, &c. said to be her property, which
' they took away, without leaving with the petitioner a copy of
* the inventory so taken, he being the defiiQct's only brother, and
4 nearest of kin to her : That the whole, at least the greater part
' of the sai4 tide-deeds, vouchers, and other valuable papers, were1
* the exclusive property of the petitioner, and not of his deceased
* sister : — ' That, independent of the papers above mentioned,
' there was at the same time carried away, either by the said
* William Brown or John M'Cubbip, a considerable sum of
510 CASES DECIDED IN THE
4 money, which has not been accounted for to the petitioner, and
4 to which he has right ;' and praying the Magistrates to find
that Brown and M'Cubbin * have acted unwarrantably in taking
' away the title-deeds, vouchers, and other valuable papers and
* money belonging to the petitioner, without leaving an inventory
' thereof with him, and to ordain the said William Brown and
4 John M'Cubbin to deliver up to the petitioner the whole papers,
4 money, &c. taken away by them, with inventories thereof/
In the procedure following on this petition, Brown (coupling
his statements with some abuse of Black as having been drunk
&c.) denied that he had taken away any thing which was not
the property of the sister, and observed in one of his papers, that
4 if the pursuer shall be so advised as to litigate this hopeless case
4 any more,1 it would be necessary that he 4 should be ordained
4 to state in a condescendence the titles, effects, and money be-
* longing to him, which he alleges to have been carried off; and
4 the respondent will then have an opportunity of knowing the
4 particulars of the demand now made upon him, and be able to
* consider of the means he ought to adopt to obtain redress for
4 the injury which the pursuer is attempting to inflict upon him.1
In consequence of this, the Magistrates ordered a condescend-
ence, which was accordingly given in by Black, and in which he
stated : — * In conformity with your Honour's interlocutor, the
* pursuer will now enumerate the articles of property belonging
' to him, which, in the false idea that they belonged to his sister,
* were taken from his house by the defenders. He must first
* premise, however, that he does not .intend the list to be sub-
4 mitted as a full and complete enumeration of his property carried
* from his house; on the contrary, he is well satisfied that seve-
4 ral valuable articles have entirely escaped his recollection.1 — ' In
4 the mean time the pursuer condescends and states that the
' following articles, which are exclusively his, were among those
4 removed from the house by the defenders, viz. a silver watch—
4 another do.— one half dozen silver tea-spoons, and silver tongs
4 — three gold rings set with stones,1 — along with the title-deeds
of a certain property, in which be had a joint interest with his
sister. This condescendence was signed by Black himself; but,
on a proof of it having been allowed, he failed entirely to establish
that any articles such as those enumerated by him had been carried
away ; while, on the contrary, a very strong presumption arose
from the evidence that he was never possessed of any such,—
none of the persons examined, some of whom had long known
him, having ever seen any such articles in his possession.
•„ The Magistrates having assoilzied Brown, he raised an action
COURT OF SESSION. 511
of damages against Black, also before the Magistrates, found-
ing on the statements jn the summons and condescendence above
mentioned, which he characterized as * utterly false and ground-
' less,' and as amounting « to little less than a charge of house-
4 breaking and theft, or, in the most favourable way in which it
* can be construed, to an accusation of gross malversation of pro-
4 fessional duty and breach of trust, in obtaining access to a man's
4 house under colour of law, and then clandestinely and feloni-
4 ously carrying off effects to which the pursuer had no right in
* any manner of way.'
The Magistrates having awarded £50 of damages, Black
brought an advocation, in which he contended, -
1. That the statements made by him in his petition and conde-
scendence were not in themselves libellous, and did not bear the
construction put on them by the respondent, as they merely
Amounted to an averment that the respondent had taken away
articles belonging to the advocator, 4 in the false idea that they
4 had belonged to his sister ;' and,
2. That they were pertinent, and made on probable grounds
in the course of judicial proceedings, as it was admitted by the
respondent that he had carried away a great many articles out of
the house possessed jointly by the advocator and his sister, with-
out leaving any inventory with the advocator ; and that the mere
failure to establish these averments was not sufficient to subject
him in damages, without positive proof of their having been ma-
liciously made, which was not attempted.
To this it was answered,
1. That the statements clearly bore the interpretation put on
them by the respondent, and could mean nothing else ; and,
& That the allegations as to the specific articles said to have
been' carried away, were not pertinent to the subject-matter of
the petition presented to the Magistrates ; and that the absolute
falsehood of the charges," and total want of all probable ground
for them, appearing from the certainty that no such articles ever
existed, was sufficient proof of malice, the more especially as all
these allegations might properly have been made in the' former
process, had there been any foundation for them, other than the
malicious desire of libelling the respondent.
The Lord Ordinary, c being of opinion that damages are due,
' and there being no plea on record that the damages are ex-
< cessive,' remitted simpliciter.
. Black reclaimed ; but the Court, while they modified the da-
mages to twenty guineas, by a majority adhered quoad ultra.
vol. v. -2k
512 CASES DECIDED IN THE
Lord Justice-Clsrk. — The first fact which is of importance to attend
to is, that there was a process by the trustees, in which the right of
the advocator under the trust-deed was brought under consideration
x of the Magistrates, and decided by them by an interlocutor acquiesced
in by both parties. In that process it was competent for the advo-
cator to have made his allegations as to abstraction of his effects,
and to have obtained judgment on them ; and unless there had been
clear proof of malice, I would have allowed the strongest allegations
as to abstraction of his property. But there was no insinuation of
that kind till the second process brought two years after matters had
been adjudicated by the Magistrates. He then puts in a new ap-
plication ; and although warned to be careful in insisting in this pos-
terior process, he yet gives in a condescendence, signed by himself,
alleging matters which could only be known to himself and mi-
nutely enumerates articles, as exclusively his, which be alleges had
been carried off by the defender. This was an averment of feet pe-
culiarly known to himself. He was allowed a proof; but not a single
person who knew him best gives the least countenance as to the
taking away of all the articles condescended on by him ; there is no
vestige of his even having been possessed of any thing of the kind,
except perhaps a trifling ring, and that not gold. The allegation
being thus utterly false, and not being pertinent to this process, the
question comes to be, Whether suck an allegation, made against a
professional man, can be protected, allowing the freest latitude to liti-
gants as to matters pertinent, which I shall always be inclined to do, as
stated by me fully in my opinion in the case of Robertson, which went
• afterwards to the House of Lords ; but it does appear to me that
these allegations are not pertinent, and that there was no colour for
the averments, but that they were mere inventions ; and being per-
sisted in against a professional man, the advocator hat exceeded the
privileges of a litigant, and become liable on the principle that legal
proceedings are not to be made a cover for slander. I am therefore
for adhering to the interlocutor of the Magistrates, except as to the
amount of damages, which, considering the advocator s age and other
circumstances, I would reduce at least to one half.
Lord Pitmilly. — I have come to the same conclusion. At first I
thought the question depended on the petition to the Magistrates,
and on that account I thought the interlocutor wrong ; but it is ne-
cessary to attend to what is afterwards stated, for a great change is
made in the condescendence from what is in the petition. In the
petition there is no mention of watches, &c, but only of papers or
money, vaguely alleged. The advocator is then ordered to conde-
scend, after having been put on his guard. There was no order to
sign the condescendence himself, but he steps forward and takes the
cause out of his agent's hands, and gives in a condescendence him-
self, which says little of the papers mentioned in the petition, but
- \e
COUBT OF SESSION. 513
contain* the new ettegations as to the watches, &c Oa these grounds,
I think that this process was made for the purpose of defaming Brown,
and tba( the advocator is not entitled to the privilege of a litigant.
There are no grounds to suppose be believed that he had been pos-
sessed of the watches, &c. ; if he had reason to believe so, he would
have been protected, but I think he knew he had no such articles,
and therefore I think damages are due ; hut they have been estimated
too high, as this pursuer has not quite clean hands himself.
Lord Allowa y.— I take a different view of this case* We are sit-
ting here as a Jutyto ascertain if there has been slander, and to assess
the damages, and in this view* I think the most important point is
the nature of the allegation made to the Magistrates in October 1824.
Supposing the goods to have been the property of the advocator s
sister, he had hie liferent of the whole effects, and although the trus-
tees might take an inventory of them, they must have remained in
the possession of die liferenter. This was an old man of 75, and the
parties, who were hie trustees at well as hie sister'*, come to take
possession of his sister's effects of which he is in possession, and en-
titled to liferent, and, in endeavouring to keep these people oat of
his bed-chamber, he is knocked down, and had three of his ribs broken.
I do- not think such circumstances ever occurred before, and I cannot
lay them out of view. The petition was presented in October 1824.
There was no felonious charge in it ; the allegation merely was, that
the respondent took away what belonged to the advocator under a
mistake, and without leaving an inventory. There is no room for
accusation of slander here. Then, as to the rest of the process, I think
the other party has more cause to complain of statements in the an-
swers than Brown of those in the petition. A condescendence was
then given in, but I cannot discover in it any animus injuriandi. On
the contrary, I think that it excludes the idea of any animus injuri-
andi. It says, that ' in the false idea that they (the articles) belonged
' to his sister,' they were taken away, &c ; and it has been ascertained
in the previous process, that no inventory was left of any of the articles
taken away, and which were taken undoubtedly without authority. All
that the advocator complains of is, that they were taken under a mis-
taken view. He then certainly states specific articles, and I admit that
the proof does not instruct that any of these articles were removed.
That, however, was the only article of probation. Whether he ever
possessed them, was not an article to be proved ; and I admit further,
that there was no evidence that such articles ever belonged to him.
There is merely no proof that he ever possessed them, but I cannot
presume he had not such articles as one half dozen of silver tea-spoons,
&c Is it improbable that he was not possessed of such articles as
those enumerated ? I do not suppose there is a person in Glasgow in
his condition that is not possessed of silver tea-spoons, and if they
were in the house, and Kferented by him, it matters not whether
they were his sister's or his, and I cannot assume him guilty of slander,
2k 2
I
514 CASES DECIDED IN THE
because he says he was possessed of these articles. If I can pre-
sume an honest intention, I am not bound to presume a slanderous
intention. I cannot see where the slander is, and a party should
surely come into Court with clean hands, which is not at all the
case here ; for if any action for slander lies at all, it is more on the
other side. I think there is no cause for damages at all, but if any,
five shillings is enough.
Lord Glenlee. — I agree with Lords Justice-Clerk and Pitmilly.
Suppose the advocator had, in addition to what he has stated, ex-
pressly put into his condescendence that he did not mean to charge
the respondent with theft, but only with a mistake, that would
have been nothing more than a protestatio contraria facti, just like
pulling a man by the nose, and telling him you did not mean to in-
sult him. If there had been any probable ground for his belief of pos-
session, it might have protected him from his allegations being held
malicious ; but from the proof I am satisfied that he must have known
the allegations to have been contrary to the met, and must therefore
be liable in damages. It is saibVthe only matter of proof was, whether
the articles were carried away ; but the first step in that was to prove
that he had them, and the witnesses were interrogated on this point,
and the other party was at least entitled to prove the contrary. There-
fore, on the whole, I think it distinctly made out that the allegations
must have been made mala fide, and malice is necessarily to be inferred
from that.
R. and A. Kennedy, W. S.— Campbell and Macdowall, W. S. —
Agents.
No, 258. G. Bbown, Complainer.— -Cockburn*
Duke of Gokdon, Respondent. —
Judicial Inspector.— A professional person employed in a cause by order of the
Court to make an inspection, entitled to decree for his account against both the
parties, conjunctly and severally.
March 2. 1827. In the action of reduction at the instaoceof the Duke of Gor-
2d Division ^on aSa^nst Innes, mentioned Vol. III. No. 11, it was moved
Lord Mackent ty &e defender that the ameliorations made by him on the estate
of Durris should be ascertained before decree of removing was
pronounced. This was opposed by the Duke of Gordon ; but the
Court appointed it to be done, and remitted to Mr. Brown, land-
surveyor, to inspect the property, and report on the meliorations.
Mr. Brown accordingly did so ; and, some time thereafter, on a
motion made at the Bar by the Duke of Gordon, in absence
of Mr. Brown's counsel, the Lord Ordinary found ( the Duke
' of Gordon and Mr. Innes each liable in a half of Mr. Browns
* account/
zie*
B.
COURT OF SESSION. 515
Against this interlocutor Mn Brown gave in a reclaiming note,
and contended that, having been employed professionally, on a
remit by ;the Court, he was entitled to a decree, conjunctly and
severally, against both the parties, who might settle between them-
selves their respective liability in a question with each other.
This was opposed by the Duke of Gordon, who contended
that, having opposed the remit to Mr. Brown altogether, decree
ought not to go out against him for more than the one half share
of Mr. Brown's account.
The Court unanimously altered the Lord Ordinary's inter-
locutor, and decerned against both parties, conjunctly and seve-
rally, reserving their mutual claims of relief.
W. Robertson, W. S. — J. S. Robertson, W. S Agents.
R. Murray, Pursuer. — Jar dine. No. 250
Ladrie*s Trustees, Defenders. — Sol.-Gen. Hope — ATNeUL
Reference to Oath—Trutieej— Reference as to resting owing of a bill of exchange
to the oath of trustees of a party deceased allowed, reserving all objections to the
effect of the oath when taken.
This was an action at the instance of Murray against Thomas March 2. 1827.
Laurie and the trustees of the late James Laurie, under a trust- *r
deed of settlement, of whom Thomas was one, for payment of a Lord Macken-
bill for £ 105, dated in 1806, and accepted jointly by Thomas *'•«•
and James Laurie. No appearance was made for Thomas Laurie, MK'
and decree accordingly passed against him; but a defence was
given in for the trustees of James Laurie, pleading the statutory
limitation, by the lapse of six years. This defence having been
sustained, Murray tendered a reference of resting owing to the
oath of the trustees, to the competency of which it was objected,
that a debt could not be reared up against a party by a refer-
ence to the oath of others, who had no real interest in the matter,
but were merely trustees, and could not legally depone to any
thing not regarding their own actions ; and in so far as one of the
trustees, Thomas Laurie, was concerned, that he was disqualified
by his interest to be relieved of one half of the bill, for which de-
cree had gone out against him.
To this it was answered, That the statute introducing the li-
mitation of bills allowed the debt to be proved by the oath of the
debtor, and that the trustees were here the debtors ; but that, at
all events, whatever effect the oath of the trustees might, have
against the estate, or those beneficially interested in it, was a
516 CASES DECIDED IN THE
question after the oath was taken, and could farm no bar to the
competency of the reference.
The Lord Ordinary reported the case, and the Court, after
delaying it for further consideration, allowed the reference, ex-
cept as to Thomas Laurie, reserving all question* as. to the effect
thereof to all or any concerned.
Loan Glenlee. — It would be too much to lay down an universal rule
that the oath of trustees on a reference will affect the estate* This
will depend on the powers given to the trustees and other consider-
ations. In general, however, I would allow the oath to be taken, re-
serving all objections to its effect. Even in the case adverted to by
Erokine, the oath was taken, but effect was denied it against certain
persons. It would be dangerous to go further than this * — and as to
the trustee, who has submitted to a judgment against him, I do not
think he ought to be examined.
Lord Pitmilly. — This is not the proper stage to determine the effect
of the oath, but merely whether it is to be allowed at all. I do not
see that Erskine states the oath not to be competent, but he speaks
of ita import as if it were taken ; and certainly in practice the com-
petency of such a reference has never been doubted. It may be of
no use, but it must be taken-
Lord Alloway. — I do not think the words of the statute make any
difference, as the question always is, who is the debtor ? And surely
a trustee or a tutor is not the debtor, which means the person truly
liable for the debt. The object of an oath on reference is to put an
end to litigation ; but, if the oath of the trustees should prove nega-
tive, would that prevent it being referred to the heir when he comes
of age ? It certainly would not ; — and as the principle for allowing
an oath does not apply here, the parties to whom it is proposed to
refer, not being those having the real interest, and as our authorities
seem against such references, except in matters relative to the trustee's
own actings, I am for disallowing it.
Lord Justice-Clerk. — I agree with Lords Glenlee and Pitmilly. I
do not conceive we are in any danger of running counter to Erskme,
even were his authority more pointed than it is. But, admitting en*
tirely his doctrine as to executors, which he illustrates by reference
to the case of a trustee, when the truster is in life, I conceive there
is a great difference between this and the case of a trustee of a party
deceased, vested in the universum jus of his property, and with power
to pay all his debts, &c Supposing such a trustee brings an action
for payment of debts, which is met by a plea of compensation, re-
ferred to the oath of the trustee, I could see nothing incompetent in
such a reference. Or, suppose that the trustees were by the trust-
deed specially directed to pay a particular debt, could the creditor
net refer that to his oath? I certainly think he could 4 and I
COURT OF SESSION. 517
therefore for allowing the reference here, reserving all questions as to
the effect of the oath when taken.
J, G. Davidson, W. S— Linking and Niven, W. S.— -Agents.
C. Akrot, Pursuer.— D. cfF. Moncreiff^Buchanan. No. 260.
Dr. White and Others, Defenders. — Jeffrey— More.
Nuisance— Verdict.— A verdict having been found for a pursuer in an action for
abating a nuisance, decree pronounced in terms of the libel.
Ik this case the only point involved related to the application March 3. 1827.
of a verdict. Arrot had brought an action of damages, and for re-
moval of a nuisance which he alleged had existed for many years i^rd'ad0*"
in the neighbourhood of his villa, but that it had not become pe- D. *"
culiarly offensive till the 1st of January 1816, since which time,
with some intervals, it had been highly injurious to his property
and comfort.
Issues were sent to a Jury, both as to the allegation of nuisance,
and a defence of acquiescence, and a verdict having been found
on both for Arrot, the defenders contended, That, from the
mode in which his summons was laid, he was only entitled to
have the nuisance abated to the state in which it was on the 1st
of January 1816; and the Lord Ordinary found accordingly
But the Court altered, and ordained the defenders ' to cease
* and desist from carrying on the noxious manufactures com-
* plained of in the libel within the works therein mentioned, and
* prohibited and discharged them from continuing the said opera-
' tions in all time coining, conform to and in terms of the conclu-
' sions of the libel.9
J. Young,— C. F. Orr, W. S.—J. and W. Jollie, W. S— W. and
A. G.Ellis, W. S. — AgentB.
J. C. Bruce, Suspender. — Handy side. Jfo. 261.
P. Boethwick, Charger. — More.
Forgery.— -Bill of suspension passed aim pi ic iter of a charge on a bill appearing,
coxnparatione literarum, to be forged.
Bruce of Balchristie having been charged by Borthwick, man- March 3. 1827.
ager of the National Bank, for payment of a bill drawn by George ]gT"T
Houy, and apparently accepted by Bruce, presented a bill of sus- Bill-Chamber.
pension without caution or consignation, on the ground that it Lord Newton.
was a forgery. The Lord Ordinary passed the bill simpliciter, H«
and the Court, being satisfied of the fact comparatione literarum,
adhered.
D. and R. Blackie, W. S.— A. W. Goldie, W. S.— Agents.
518 CASES DECIDED IN THE
No. 262. J- Wilson, Advocator. — Wthon.
H. Jamieson, Respondent. — Jameson — Fletcher*
Process— 6. Geo. IF. e. 120. — A record having been closed in relation to cer-
tain allegation*, and a remit made to the Jury Court, and it having been pro-
posed to make an issue as to a point not in the record ; and this having been
objected to, and the case sent back to the Court of Session to have this rectified;
and the Lord Ordinary having allowed a new condescendence on condition of
payment of the previous expenses, and the party having reclaimed as to this
condition, and the other party having acquiesced ; the Court adhered ; bat Ob-
served, that such an order was incompetent.
March 3. 1827. Jamieson, as clerk of the road trustees for the district of Car-
1st Division. ™k *n Ayrshire, presented a petition to the Justices of the Peace
Lord Eidin. against Wilson, in which he stated, that by certain operations he
D« had formed an obstruction on a public road within that district;
and founding on the road act 45th Geo. III., he prayed that
Wilson should be ordained to remove the obstruction, and to be
subjected in certain penalties. The defences relied on were,
1. That the complaint had not been made, according to the
statute, in due time ; and,
% That the road was not a public road, but was a private ser-
t itade road.
The Justices having decerned in terms of the prayer, and
Wilson having advocated, Lord Alloway appointed him ' to lodge
' a condescendence of what he offered to instruct, in order to es-
' tablish that the road in question is a private servitude road not
' falling under the trust management, and also that the appli-
' cation was not made within the period provided by the act of
( Parliament on which it was founded.'
A record confined to these points was then made up and
closed by Lord Eldin, after which the case was remitted to the
Jury Court. The clerks of that Court having suggested that an
issue should be taken as to whether there had been an obstruction
or not, it was objected by Jamieson, that as the record was con-
fined to the two points specified in the interlocutor, and it was
now closed, it was incompetent to make an issue on a point not
included in the record. The case, however, was sent back to
the Court of Session, with the view of having this rectified ; and
Wilson then moved the Lord Ordinary to allow him to give in a
new or additional condescendence. This was resisted by Jamie-
son, unless the previous expenses were paid ; and the Lord Or-
dinary having heard parties' procurators * upon the state of the
' process as now remitted from the Jury Court, and the demand
' made in behalf of James Wilson, advocator, to be allowed to
kv
COURT OF SESSION. 519
< give in a new or additional condescendence, found, that before
< being allowed to give in any new or additional condescendence,
' the advocator must pay the expenses hitherto incurred by the
' respondent ; and appointed the advocator to be ready to state at
' next calling if he is or not willing to pay the previous expenses
' before condescending of new.9
Wilson then reclaimed, and contended that he was not bound
to pay the previous expenses ; but the Court adhered.
The Court were of opinion, that as the record was closed, it was in*
competent to receive a new condescendence ; but as the respondent
had not reclaimed, and had therefore acquiesced in the interlocutor,
they could only adhere.
W. Mercer, W. S. — Donaldson and Ramsay, W. S. — Agents.
W. Adaie, Advocator.— Sol-Gen. Hope— Wilson. No. 263.
Mrs. Adair and Others, Respondents.— Monteith.
Process— Proof on Commduion-— Commissary Iburt.— In a declarator of legitimacy,
in which a proof was granted of the marriage of the parents— Held competent to
take it on commission, in respect of the poverty of the pursuer, and the necessity
of the case.
William Adair, alleging that he was the lawful son of the March 3. 1887*
late John Adair of Cross Arthurlee, brought an action of declar- \n division.
ator of legitimacy before the Commissaries of Edinburgh against BUl-Chamber.
Mrs. Adair and others, the sisters of his father. In de- Lord Newton,
fence it was admitted that he was the son of John Adair, but it
was alleged that he was a bastard ; that his mother had been Adair's
kept mistress for some time ; that she was of the lowest rank in
society, whereas he was-a person in opulent circumstances ; that
her subsequent conduct indicated that she did not regard herself
as his wife, and that accordingly during his life she had married
another man.
To this it was answered, That the pursuer would prove that
both prior and subsequent to his birth, they were habit and re-
pute husband and wife ; and of this the Commissaries allowed a
proof. The pursuer then moved for a commission to take the
proof in Paisley and Glasgow, stating, that as he was a journey-
man wright, earning wages of only 15s. per week, (of which he
produced a certificate from the elders of his parish,) and as it
would be necessary to bring to Edinburgh sixty or seventy wit-
nesses, and to maintain them there during the proof, it was not
within his power to do so.
On the other hand, the defenders contended, That as it was the
520 CASES DECIDED IN THE
general rule that the proof should be taken in presence of the
Court itself, and as this case was of an important and delicate
nature, and ms the witnesses were all in the lowest rank of society,
so that there was danger of combination, and as poverty was no
reason for deviating from the established rules of law, a commis-
sion ought not to be granted. The Commissaries refused to grant
the commission, and having thereafter circumduced the term and
assoilzied the defenders, the pursuer presented a bill of advoca-
tion, praying for a remit with instructions to the Commissaries
to recall these interlocutors, and to grant commission to the Com-
missaries of the bounds* or to any other commissioner, for taking
the proof.
The Lord Ordinary having reported the bill with answers, the
Court remitted with instructions to recall the interlocutors, and
to allow the proof to be taken on commission as prayed for.
Lord Balgray. — I do not see any objection in point of law to a com-
mission being granted, and I think a case of sufficient necessity has
been made out Indeed the defenders ought, for their own sakes,
to have the question fairly tried, because, notwithstanding the pre-
sent absolvitor, any creditor of the pursuer may afterwards come
forward and attach the estate of Mr. Adair, on the footing of the
pursuer being his Bon and heir. They ought, therefore, rather to
facilitate the investigation ; and if they wish the witnesses to be ex-
amined here, I would advise tbem rather to pay the expense, than
to allow the matter to lie over in uncertainty.
Lord Craigib. — I am perfectly satisfied, that unless the defender*
agree to pay the expenses of bringing the witnesses here, a commission
should be granted. This is not a question of property, but of status,
which should be determined during the lite of the pursuer, aad con*
sequently every facility should be given to enable him to bring for-
ward his proof.
Lord Gillies.— I have great doubts as to granting such a eomnufe
sion. The poverty of the pursuer may affect our feelings, hot we
must throw these aside in judging of a question of law. Hitherto
it has only been in cases of absolute necessity that a commission
has been granted for taking proofs of this nature. But the only ne-
cessity which is here alleged is the poverty of the pursuer. It is
not said that the witnesses are unable to travel either from bad health,
age, or otherwise ; — all that is said is, that the pursuer is a poor man ;
but if we are to grant a commission on that ground alone, then this
would be a good reason for taking proofs on commission in the Jury
Court, and thus in every case where a man was in poor circum-
stances, the witnesses, instead of being brought before the Jury,
„ would be examined on commission. I therefore regard this as a
• most dangerous precedent.
COUBT OF SESSION. «ft,
Lord Pftast&Efrt^Tljt* fa * ntatOfert dktbctioo between the Jury
Court and the Comaupmy, for the former travels over the country,
whereas the CoinanBeariea are stationary at Edinburgh* It fa no
doubt the general rale in Alt Court, that a commianon ia net to be
granted, but it is not invincible ; and as I consider that this case
forms an exception* I tbink the commission should be granted, un-
less the defenders will agree to pay the expenses of bringing the
witnesses here*
D. WiLSotf, W. S— W. and A. 6. Ellis, W. 3.— .Agents.
*
A. Campbell, Pursuer and Suspender. — SoL-Gen. Hope — No. 264*
APFarlan.
B. Hill, Charger and Defender.— Cuninghame.
Oath on reference in the case ante, Vol. V. No. 42. The Court March 3. 1837.
found it negative. SdId^Tiok.
Lord Reston.
Ton and Weight, W. S. — J. DoNALDSoif^-Agents. M»K
Dukk of Queensberby's Executors, Pursuers. — RutJierfurd. No. 265.
C. Tait, Defender.— D. ofF. Moncreiff—Taii.
Agent and Client" "Expenses.— 1.— The executors of a client having insisted that
the business accounts of his agent for a series of years, which had been ren-
dered and not objected to, but which had not been docqueted, should be audited ;
and the agent having been in a great part successful, both in relation to
the amount of the charges, and to other litigated points— Held,— 1 .—That he
was entitled to modified expenses. — 2.— That it was not an objection to decree
going out in the name of the agent in the cause, who had appeared as such
from the commencement, that the party himself (who was a practitioner before
the Court) had chiefly taken the management of the process.
Mb. Tait and his father had been agents for the Duke of March 3. 1827.
Queensberry, and their business accounts, although rendered and go Dmsiow.
not objected to, had not been formally docqueted since the year Lord Pitmiliy.
1778. In 18W, after the Duke's death, his executors refused B.
Co hold the accounts as settled, and raised an action of count
and reckoning, in which they insisted on having the accounts
audited. Having succeeded in obtaining a judgment, finding the
accounts still liable to be audited, (ante, Vol. I. No. 486,) they
were remitted to Mr. Brown, an accountant, along with Mr. Tait's
subsequent accounts with the executors till Martinmas 1817.
The accounts embraced a period of 40 years, add amounted to
JB 40,677 : 6 : 1, from which Mr. Brown struck off .£5701 : 10 : 5.
Mr. Tait having objected to this report, the Court remitted the
accounts to Mr. Roger Aytoun, W. S. along with Mr. fcrown,
JOtSL CASES DECIDED IN THE
who having reported, their Lordships, after considerable litigation,
reduced the taxations made by Mr. Brown to £99SSt : 11 : 8, but
repelled Mr. Tait's objections to the mode erf accumulating inter-
est adopted in the report, (ante, Vol. V. No. 112.) In the mean
time another question had been agitated, whether Mr. Tait was
bound to consign the sum contained in an heritable bond granted
by him to the Duke of Queensberry, which sum had been lent to
Mr. Tait, and was to be answerable for any claims of damages
which might be due to the Queensberry tenants, in the event of
the reduction of their leases, which Mr. Tait had warranted per-
sonally, as well as on behalf of the Duke. In this question the
Court found that Mr. Tait was not bound to consign till relieved
of the obligation of warrandice. At the issue of the whole litiga-
tion, the Court found Mr. Tait entitled to expenses, subject to
modification. The executors had agreed to pay the expense of
auditing the accounts before Mr. Brown and Mr. Aytoun, and
the expenses now sent to the auditor, prior to modification, were
those incurred by Mr. Tait in the discussions in Court. The
auditor having taxed the accounts, reported them to the Court,
as included under the four following branches.
Branch I. Comprehending the question whether
the accounts up to 1809 should be held to have
been settled in the lifetime of the Duke of Queens-
berry, £QJ 15 10
II. Comprehending the discussion as to the con-
signation of the heritable debt, * - 76 8 2
III. The discussion as to the accumulations of
interest, - - - . - 6963
IV. Regarding the correctness of Mr. Taifs
law charges, be. .... 547 15 11
.£761 6 2
The Court disallowed entirely the first branch, allowed the
second in full, modified the third to £50, and the fourth to <£500,
thus reducing the whole to i?625, for which it was craved by
Mr. Clark, W. S. as Mr.Tait's agent, that decree should be allowed
to go out in his name. This was objected to on the part of the
Queensberry trustees, to whom Mr. Tait was still indebted a con-
siderable sum, unless Mr. Clark would state that he had person-
ally undertaken the whole trouble in conducting the cause, and
had advanced all the outlay. To this it was answered, That Mr.
Clark, as appeared from the papers, had been the acknowledged
agfnt from the beginning of the process, and was not put forward
COURT OF SESSION. BUS
to evade the objection which there might be to decree going out
in Mr. Tart's own name ; that for a great part of the outlay, as
printing, &c. he was undoubtedly personally liable; and that there
was no ground for making such an unusual demand as that now
insisted on by the executors.
The Court, without calling on Mr. Clark to make the de-
claration required by the executors, allowed decree to go out in
his name.
Lord Justice-Clerk. — Without entering immediately into all the
different steps of this long process, it is quite enough that Mr. Tait,
notwithstanding the severe ordeal to which he has been subjected, has
succeeded to a very great extent. As to the first branch of these ex-
penses, he was unfortunately unsuccessful in the question in which
they were incurred, and although fairly entitled, in the circumstances,
to try the question, he cannot be allowed the expenses. As to the se-
cond, he is clearly entitled to the whole. In the third, he was not en-
tirely successful, but having been so to a certain extent, I would pro-
pose to allow it, under modification of striking off the odd sum above
JK50. As to the fourth branch, he is entitled nearly to the whole. In
the circumstances, the executors were bound to pay for auditing the
accounts, and I can attach no importance to the statement made at the
Bar, that they have already paid £1500 to Mr. Brown for his re-
ports, besides a large sum to Mr. Aytoun. In regard to decree go-
ing out in Mr. Clark's name, I see that on the whole of the papers
in this voluminous process he is marked as agent from the very be-
ginning, and he has always been acknowledged as such by the exe-
cutors, all intimations, &c having been sent to him. The case might
be different, if a person were thrust in as agent at the end of the
cause, to evade a plea of compensation. But that is not the case
here. Mr. Clark has been all along known and acknowledged as
agent, and is clearly liable personally for any expense that may be
due to printers, &c In these circumstances, I do not think it at all
necessary to go into an investigation as to the extent of the charge
taken by Mr. Clark, and I conceive that it would be quite imma-
terial that in a cause of such importance to him, Mr. Tait had per-
sonally taken a considerable charge of it.
The other Judges concurred.
J. Gibson, W. S. — W. Clark jun. W. S*— Agents.
2d Division.
F.
524 CASES DECIDED IN THE
No. 266. Earl of Fife, Tixvswr.^effrey^ockbur*-- Robinson.
Sir J. Duff and Others, Defenders-— D. cfF. Moncreiff—
Thomson— Futterton.
Expends, and Interest pn Expense*.— I .—The expenses of two Jury triali having
been awarded, held that the expense of examining on commission a witness,
whose deposition was afterwards read to the Jury,— of preparing issues in this
Court,— of the discussion in thia Court in obtaining a new trial,— and of oppos-
ing a bill of exceptions, fell under the award.~2>- Interest allowed on expenses.
March 3. 1827. The Court having found Lord Fife entitled to the expenses
of the two first Jury trials in the process between him and the
trustees of the late Earl, mentioned ante, Vol. IV. Nos. 241.
and 497, * but to no other expenses,' the accounts were laid before
the auditor, who reported for the consideration of the Court,
whether the expenses incurred in relation to the following matters
fell within the finding by the Court,
1. The expense attending the examination of a witness, whose
deposition was afterwards read to the Jury on the trial under a
commission from this Court
2. That regarding the preparation of issues in this Court prior
fo the remit to the Jury Court.
3. The expenses of a discussion on an application for a new
trial on a particular point, which was granted.
4. The expense of opposing the defenders' bill of exceptions,
which had been disallowed ; and,
5. Certain charges for general trouble on the part of the agent
regarding the trials.
The auditor also submitted ft claim far interest on these ex-
penses made on the part of Lord Fife's ageqt.
For Lord Fife it was pleaded, That as to the first four articles,
they were all essential either to the obtaining or supporting- the
verdict of the Jury, and therefore, on a fair construction of the
interlocutor, fell within the expense of the trials ; that the charges
for trouble were in all the circumstances extremely moderate; and
as to the claim for interest, that as very large sums had been ad-
vanced by the agent, which he had lain out of for a long time, if
he were not allowed interest, he would in reality be a loser by his
employment, the interest of the sums advanced greatly exceeding
the charges for his own personal trouble and remuneration. The
Court being satisfied that all the charges fell within the terms
and meaning of the interlocutor, and that in so far as regarded
the agent's own remuneration, they were exceedingly moderate,
allowed the accounts in full, with interest thereon.
W. Cook, W. &— J. and W. Jollie, W. &— .Agents.
COURT OF SESSION. 685
Kyle, Pursuer. — More. No. 267
His Creditors, Defenders. — Sandford.
Ceme Bonorum.—A pursuer of a cessio having been incarcerated for the fall pe-
riod of a month, and being ready to appear and submit himself to the orders of
Court, held no objection to his title to pursue that he was not in jail at the date
of raising the summons.
Kyle having been incarcerated for a month, and then liberated, March 3. 1827.
raised and executed after his liberation a summons of cessio bono- 2» division.
rum against his creditors. Being under the idea that the execution
while out of jail was invalid, he was again incarcerated, and had
the summons executed anew. When the cessio came to be pleaded,
certain of his creditors objected to the competency of the action,
on the ground that at the time of raising the summons the pur-
suer was not in jail, which they contended was essential to the va-
lidity of the action.
To this it was answered, That, to entitle a bankrupt to raise
a process of cessio, it was only necessary that he should have
been in jail by detention of his creditors for the full period of a
month, and that the jus quaesitum so acquired was. not lost by
liberation before raising the summons, but that it was enough if
the pursuer were ready to subject himself to the orders of Court
at the time of deciding on the cessio, in case it should be refused,
and he offered now to appear in Court, if required, and submit
himself to their Lordships1 orders.
The Court repelled the objection, allowed the cessio to be
stated, and thereafter granted the benefit of it.
Lord Glenlee expressed some doubts on the point, but the other
Judges were clearly of opinion, that if the pursuer had been a month
imprisoned, it was immaterial whether or not he were in jail at the
time of raising and executing the summons.
Sea Insurance Company of Scotland, W. Bbaipwood, their No. 268*
Manager, and Others, Suspenders.— Rutherfurd.
J. Gavin and Others, Chargers. — Forsyth — N eaves.
\ — Circumstances in which a shipping place not protected by any arti-
ficial works, was held to be a ' port' within the meaning of a policy of insurance.
Aeaipwood, as manager, and certain other persons as directors March 3. 1827.
of the Sea Insurance Company of Scotland, underwrote, for be- Division
hoof of the company, a policy of insurance on the brigantine Admiralty.
Sarah of Leith, belonging to Gavin and others, c at and from F.
526 CASES DECIDED IN THE
c Leith to Shetland, and from thence to Barcelona, and at and
( from thence and two other ports in Spain to a port in Great
' Britain.'1 When the Sarah arrived at Barcelona, she found the
plague so prevalent that the cargo could not be discharged, and
she was in consequence ordered by the consignees to Tarragona,
where she unloaded. She then proceeded to the bay of Saloe, about
five miles to the westward of Tarragona, to ship her homeward
cajgo, and while lying there in the same situation with other vessels
likewise loading there, part of her cargo only having been taken
in, she was driven ashore by a hurricane, and totally wrecked. In
an action on the policy in the Court of Admiralty as for a total loss,
the Sea Insurance Company pleaded in defence, That Saloe, where
the Sarah was wrecked, was not a port within the meaning of the
policy. Issue having been joined on this, the Judge-Admiral
allowed a proof by commission, from which it appeared that Saloe
bay was about 13 miles in breadth, and was protected by the
point of Saloe from all winds except those ranging from east round
by south to west, and was fully as safe even in such winds as
any of the ports in that part of the Mediterranean :— that there
was no mole or pier which could afford protection to ships, or at
which they could load, but merely a jetty, alongside which the
country feluccas and small vessels not drawing more than five
feet water could lie, and where these feluccas took in the cargoes to
be conveyed to the ships lying at the usual station, about a mile
and a quarter from the shore, at which station, being about two
miles within the, point of Saloe, the Sarah was along with other
vessels at the time of the wreck : — that there is a small town at
Saloe with considerable warehouses for goods, and likewise a
customhouse establishment, attached, however, to the custom-
house of Rous, a town lying about eight miles inland, where the
merchants carrying on trade at Saloe reside, and where also a
British consul resides .for. the protection of the trade at Saloe,
which place he generally visits duly : — that there is also an officer
called the Fort Captain established at Saloe to regulate the sta-
tions of the vessels, by direction of whom, and of the customhouse
officers, the Sarah was moored ; and, lastly, that Saloe is a place
of very extensive trade, but chiefly for export, as vessels seldom
discharge their cargoes there. Evidence was also led as to the
character of the harbours of Barcelona and Tarragona, which
are both furnished with moles to which vessels can be moored,
and where they can discharge their cargo, although it appeared
that, in the hurricane which caused the wreck of the Sarah, out
of* 60 vessels lying at Barcelona only one escaped- There was
further adduced evidence of various, persons connected with in-
COURT OP SESSION. 527
surance-houaes, as to whether they considered Saloe to be a port
in the sense made use of in policies; but their opinions were
contradictory ; and evidence was also led to show that there were
two well-known forms of policies,— in particular, one to * ports*
alone, and the other to ' ports or places,vthe premium being con-
siderably higher for the latter than the former.
On this proof the Judge-Admiral ordered memorials, in which
it was contended for the underwriters, That Saloe was not a port
in the meaning of a policy merely to ' ports,9 and not to * ports
' and places,1 — ' ports' being understood to mean harbours having
artificial works for their protection ; but that this was merely an
open roadstead, which could not be made a port merely by a
custom-house being stationed there, (this being the case in every
bay in Spain where it was possible to land goods,) and which fell
within the other form of policy * at and from ports or places,'—
a form implying a higher risk, and always used when intended
to cover shipping places of the description of Saloe ; but further,
that the policy being to Barcelona and two other * ports/ it neces-
sarily meant two other ports of the same description with Barcelo-
na,— viz. having a regular mole or pier for the protection of ships.
On the other hand, it was contended for the owners, That
although being within the bounds of a custom-house did not con-
stitute a port, yet the circumstance of a place being acknowledged
by the general usage of trade, and the sanction of the govern-
ment of the country, as adapted for the loading of vessels, did
make such place a port, although there might be no artificial
works for the protection of the shipping, as was the case with
Funchal in Madeira, Madras, Lerwick, and several other natural
harbours ; and that Saloe, being acknowledged by the general
•usage of trade, and by the government of Spain, as a port, and
being so held and denominated by the inhabitants, must be con-
sidered to be a port in the meaning of the parties in entering into
this contract of insurance.
The Judge-Admiral found it proved * that Saloe in @pain,
* where the Sarah was wrecked, is a port within the meaning of
* the policy in question, and that the vessel was within the same
* at the time the loss took place/ and therefore repelled the de-
fences, and decerned in terms of the libel; and in a suspension by
the Insurance Company, the Court, after disposing of the pre-
liminary objection mentioned ante, No. 226, by a majority repelled
the reasons of suspension.
Loan Justicb-Clerk, — This question depends partly on fact, and
partly en tire true construction of the terms of the policy; and h does
appear to me, that although there is no evidence of there being at
vol. v. 2 L
528 CASES DECIDED IN THE
Saloe a proper mote, pier, or artificial works necessary to constitute
an artificial harbour, yet there is a jetty for small craft, in which
' goods are shipped, to be put on board vessels lying as near the shore
asmay be. There is also a custom-house ; and although it is not enough
to constitute a port that it is within the jurisdiction of a custom-
house, it is still a circumstance of importance that there is at Saloe a
regular custom-house establishment. It is also of importance that a
British consul is placed there ; and that it is the constant usage for
vessels to load at Saloe in the situation where the vessel here insured
was lying when lost. Under all these circumstances, it appears to me
that Saloe must be held to be a port under the terms of this policy.
It is dealt with by the government of the country as a port, and h
is used as a place for trade. It is also very material, in my view of
the case, that it is true, in point of met, that there are many natural
harbours in which the artificial works are as nothing. There may be
many -natural basins where there are no works at all, but when
trade is carried on to a considerable extent ; and I am not prepared
to say that such, natural harbours are not to be considered as ports.
On the whole, looking at the proof, I think there is sufficient evi-
dence to hold that, in the understanding of trade in. general, Saloe is
to be considered a port, and, except in particular winds, it seems s
very safe place. I am therefore of opinion that the insured are en*
titled to recover.
Lord Glen lee.— I agree in general with your Lordship. It is im-
possible to consider * port' as synonymous with ' harbour.* There is
something vague as to the notion in one's mind of what constitutes
the essence of a ( port.' It rather strikes me that it means a place
authorized by the government of the country, and where, by usage
of trade, vessels are accustomed to resort for loading or delivering
of cargo ; and wherever such usage prevails, there will also be more
. or less convenience or security for the purposes of trade. This de-
- finition also coincides with the origin of the word, aa a place to which
goods are carried. To be sure, a number of porta may have harbour*
formed by artificial piers, quays, &c ; and if there be a harbour, I
can understand how a vessel may not be considered in post, juries*
lying in the harbour, as it must always be understood that she h to
go to the port as other vessels do, viz. to go into the harbour when
other vessels deliver their cargoes. But it is quite different if these
be no harbour, and she has gone to the only place frequented by
vessels, as was the case here. The vessel, in this case, was in the
same situation as the other vessels at Saloe. In the sense of the
country, Saloe is a well-known port, with a custom-house and consul
Suppose the vessel had, on her return, put into Lerwick, (where I
understand there is no artificial harbour, but which is a port com-
monly resorted to in trade,) and had been lost there, would we not
have held it within the policy? And I do not think the caeq, as it
stands, is materially different
COURT OF SESSION. 529
Lobj> Pi ?|*i4.lk— This is a nice an44h^e«]t Jury question, and it ought
to bare been sent to a Jury* My opinion baa varied at different
times, and I still hare doubts of the Judge* Admiral's interlocutor-
The principal witness, Stracban, in his examination in chief, states
' that there is a pier at Saloe, and along the further end of it the
' water k of the depth of from 15 to 16 feet/ and ' that he has seen
' nine vessels at a time moored alongside the pier.' If this bad been
the fact, there could have been no question ; but, by his subsequent
examination, and that of the other witnesses, it is clearly made out
that there is no pier or quay of any kind for foreign vessels, or vessels
drawing more than four feet, but just a small jetty, where the country
feluccas load. This, therefore, creates a difficulty in my mind. There
is another point of difficulty. It is made out that in practice there are
two different .kinds of insurance policies,—- some * to a port or ports,9
others ' to ports and places.' If there were no such insurance as the
latter, and the constant practice was to insure only to ports, it would
have been a different thing. But where, technically, there is a different
form to cover places not falling under the proper description of ports,
and Saloe being in common description a place, in what cases are we
to use ' place,' if not in such as the present ? The question is one
of construction, what was the meaning of parties ? And in this view
I have considerable difficulty, though no opinion so confident as to
induce me to alter the Judge- Admiral's interlocutor. I must there-
fore concur with your Lordship in repelling the reasons of suspen-
sion, although I certainly do so with very great difficulty.
Lord Alloway. — This case ought certainly to have gone to a Jury ;
but the proof having been taken by commission in the Inferior Court*
we are now called on to give judgment on it as it stands, and I con-
fess that I entertain similar doubts with those expressed by Lord Pit-
milly. This is a difficult question, and has not been determined either
here or in England, though some judgments in the English Courts
certainly come very near it. It is impossible to doubt that ports
and places have entirely different meanings. I suspect that the form
of insuring ' to ports or places' existed long before the last war. But,
be that as it may, we see what the Scotch and English brok-
ers say as to the distinction between such an insurance and that
to ports only : the former is considered a greater risk, and this dis-
tinction is of considerable importance in determining the question.
A port, in common language, is certainly different from a place, and
I therefore conceive that a port must mean a harbour — a place for
the protection of ships. The mere circumstance of a custom-house
being situated at any place can never make it a port ; and indeed all
the witnesses say, they know of no bay in Spain without a custom-
house to prevent smuggling. The British consul too lived at Rous,
a distance of eight miles. As to the actual situation of Saloe, it ap-
pears from the proof to be a bay of from 15 to 20 miles wide. Take
it as 15 miles wide, — surely a bay 15 miles wide cannot be called a
2l2
580 CASES DECIDED IN THE
harbour. It is aft open bay, ill every sense of the term. No vend
can lie at the harbour or jetty ; and it does not appear that cargoes
are ever landed, but only shipped. Is it possible, then, to reckon it a
port giving refuge to vessels, and affording that * safety' which is a
ruling consideration in all contracts of insurance? In common lan-
guage, port is a place where a vessel rides at safety, with a pier, &c
to protect her, — statio tutissima nautis. The obligation of warranty in
contracts 'of insurance, as in every other contract, must be construed
in the strictest terms, and I do not think it can be held to apply
here. The English decisions quoted in the papers as to seizure in
port come very near this, as the two vessels taken at Pfllau, in which
the vessels were held not to be in port when they had arrived at the
bar, where vessels always unload part of their cargo to lighten them,
so as to enable them to pass the bar. On the whole, I am for sus-
taining the reasons of suspension.
Lord Justice-Clerk. — I wish it to be understood that my opinion
does not at all rest on any idea of an insurance to < ports' being the
same with an insurance to ' ports and places ;' they are perfectly dis-
tinct : but I hold Saloe to fall within the description of a port in the
meaning of the policy; and as to the cases of seizure at Pillau, I can-
not conceive how there ever came to be a question raised in the cir-
cumstances, the vessels not having got over the bar at the entrance
to the port.
Lord Glenlee. — Whether the form of insuring to * ports or places'
originated during the war or not, I can easily conceive that places
would be put in where it might be necessary to smuggle goods, per-
- haps on the open coast, where there is no convenience for trade at
all ; but the circumstance of places being different from ports can-
not limit the construction of ports, or determine what a port is»
Suspenders' Authorities.— Constable v. Noble, 2. Taunton, 403 ; Cockery * Atkin-
son, 2. Barn, and Aid. 460 ; 1. Marsh. 276 ; Brown v. Tierney, 1. Taunt. 517;
Kenyon v. Scott, 4. Taunt. 660 ; Baring ». Vaux, 2. Campbell, 541.
Chargers* Authorities.— Comyn, Dig. voc. Merchant, Marine Insurance, 288; I.
Marshall, 6. 5; Noble tr. Kennoway, 1. Marshall, 6. 5; Rucker 0. London
' Assurance Company, (ibid.) ; Henry v. Royal Exchange Assurance Compas 7,
(ibid.)
Inglis and Weir, W. S.— W. Smith,— Agents.
: COUBT OF SESSION. 631
Lobd Macdonaxd and Others, Complaxners.—FuU€rton — Ktay. No. 269.
P. Grant, Esq. Respondent.— X>. ofF. Moncreiff—SoL-Gcn.
Hope—Buchanan.
Procen— Freehold Qualification.— -Freeholders having sustained a claim of restric-
tion made by a freeholder, and allowed him to retain his place on the roll-
Held that a petition and complaint against this resolution, merely praying to find
that they ' did wrong in allowing the qualification to he restricted' without any
prayer to have the party struck off the roll, was incompetent.
At the meeting of freeholders of the county of Inverness, held March 6. 1837.
on the 7th of July last, to elect a member of Parliament, a claim . *r
was presented by Patrick Grant of Lakefield, Esq. (who had been Lor(j Newton,
previously enrolled,) praying that his qualification might be re- D.
stricted to certain portions pf the lands on which his original en*
rolment rested. This having been objected to, on the ground
that the lands to which he wished his claim to be restricted did
not afford a freehold qualification, the meeting, after considering
the objection with answers, * sustained the claim of restriction,
' and restricted the claim of his original enrolment accordingly,
* and allowed the claimant to retain his place in the roll.9
Against this judgment Lord Macdonald and others presented
a petition and complaint, in terms of the statute 30th Geo. III.
c. 17, in which the prayer, after the usual motion for a warrant
of service, and a remit to the Lord Ordinary to prepare the cause,
was, ' to take the case into consideration— to find that the majority
4 of the freeholders did wrong in allowing the qualification of the
' said Patrick Grant to be restricted in terms of his claim— -to find
' the said Patrick Grant liable in expenses to the petitioners, and
* to decern.*
Against this complaint it was objected,
1. That it was inept and incompetent, in respect that although
it is founded upon objections which import that the respondent,
under his restricted claim, has not a sufficient valuation, it con-
tains no prayer to have these objections sustained, or to have the
respondent's name struck off the roll ; or to have it found that
the freeholders did wrong in continuing him on the roll ; nor any
conclusion under which the CourJ could be empowered to pro-
nounce the only judgment which the objections, if well founded,
would in law warrant.
2. That the complainers have not a legal title and interest to
maintain the complaint as it is laid.
3. That there is no warrant in the election statutes, and no
precedent in any decided case, for a petition and complaint in
such terms as that now before the Court ; and,
5S& CASES DECIDED IN THE
4. That it is not now competent to amend the prayer of the
complaint* four months having elapsed from the date of the judg-
ment of the freeholders.
To this it was answered, That the prayer was suited exactly
to the nature of the complaint, that the application of the re-
spondent to the Court of Freeholders was to have his original
qualification restricted, i. e. to be allowed to stand on the roll
on a part of the lands contained in that original qualification:
That the appropriate legal objection to such an application was,
not that the party ought tq be struck off the roll— a consequence
which does not necessarily follow from the demand of restric-
tion being refused — but that the qualification ought not to be
restricted, i» e. that the restricted lands, on which exclusively
he wishes to continue on the roll, do jiot of themselves afford a
sufficient qualification : That accordingly the petitioner, in the
prayer, correctly craved the Court to find that the freeholders
did wrong in repelling the objection, and granting the respond-
ent's application ; and the result of the success of the petition
will be, to have the respondent's original qualification unre-
stricted, and consequently to subject it to the usual operation
of any change of circumstances which may have taken place on
it since the respondent was enrolled.
The Lord Ordinary having reported the objection, the Court
sustained it, and dismissed the complaint.
Loan President.— The only jurisdiction which is given to ns by the
election statutes is to keep the roll pure. We have nothing to do
with the findings of the freeholders, except to that effect* We might
. be of opinion that all the findings complained of were wrong, but
that the conclusion at which the freeholders bad arrived was right,
and therefore that the complaint must be dismissed. As we eaa
only entertain objections relative to admitting, striking off, or con*
tinuing a claimant on the roll, we must have such a case before us,
otherwise we cannot listen to it. But here there is no prayer of
that nature ; all that we are asked to do, is to find that the free-
holders did wrong in allowing the qualification of the respondent to
be restricted in terms of his claim ; but we are asked to do nothing
more. It is impossible to sustain such a complaint.
Lord Balgray. — I am of the same opinion. There is here no prayer
to have the respondent's name expunged from the roll, but merely to
find that the freeholders did wrong in allowing him to restrict his
claim. The petitioners, however, can have no interest to object to
that, except to the effect of having him struck off the roll, for which
they do not pray.
Loan Gillies. — I am of the jam* ©pinion. Every freeholder is en-
COUBT OF SESSION. 538
titled to restrict hit claim, but after it baa been so restricted, any
other freeholder may object that he has not now a sufficient qualifi-
cation, and therefore that he should be struck off the roll ; but here
there is no such prayer before us. Indeed, it appears to me some-
what extraordinary that any objection should hare been made to the
restriction, for if, when restricted, the respondent had not a sufficient
qualification, the objectors, instead of opposing the restriction, ought
rather to have consented to it, and then to have taken advantage of
the change of circumstances, and so have got him struck off the roll.
J. A. Campbell, W. S. — H. Macqueen, W. S. — Agents.
R. Tullis, Pursuer.— Scl.-Gen. Hope—MackgiU. No. 270.
J. C Bruce, Defender. — Jeffrey — G. Napier.
This was a question of a special nature as to the regularity of March 6. 1827.
a summons. The Lord Ordinary sustained it, and the Court, lsT"J
in respect that it resolved into a count and reckoning, adhered. Lord Meadow-
bank.
A. Montpehny, W. SmD. and R. Blackie, W. S. — Agents. &
£• Doig and Others, Advocators and Suspenders. — Jameson — . No. 271*
Neaves.
J. Fenton and Others, Respondents and Chargers.—
•7. Hendenonjun.
Stat. 6. Geo. IF. c. 120.— Process— Expense*. — Cause remitted to Inferior Court,
in respect judgment was pronounced without making up a record ; but expenses
refused to compiainer, on the ground of his not objecting in the Court below.
In a process before the Dean of Guild Court of Dundee re- March 6. 1827.
garding some urban tenements, a judgment was pronounced in 2 D
favour of Fenton without the record having been closed, — neither ^ Crin j J."
party having observed the omission. Of this judgment Doig b.
brought an advocation, and likewise two suspensions, to prevent
Fenton proceeding with certain operations on the tenements in
question, authorized by the Dean of Guild. In each of these
* processes the Lord Ordinary pronounced this interlocutor: ' In
' respect the record in the Inferior Court has not been closed, re-
* mits to the Dean of Guild of Dundee to recall his interlocutor
c —to reconsider the case — to close the record — and afterwards to
* pronounce judgment ; but in respect the parties did not apply
* to the Dean of Guild to recall his interlocutor and close the re-
€ cord, finds no expenses in this Court due to either party/
Against these interlocutors Doig reclaimed, in so far as expenses
f
584 CASES DECIDED IN THE
were not allowed, or at least reserved, and in the suspensions, in
so far as interdict had not been granted as craved. The Court
unanimously adhered.
Ritchie and Miller, — W. Murray, — Agents*
No. 272. P- Irvine, Advocator. — Cockburn — Gordon.
Mrs. M. Thom or Fiddes, Respondent. — JD. qfF. Moncreif—
Lumsden.
Landlord and Tenant— Faculty.— A tenant under a lease for 38 years, and there-
after during the lifetime * of any person to be condescended upon by bim by a
' writing under his hand,' held to have validly exercised the power in favour of
his eldest daughter by a nomination in these terms :— * I do hereby nominate and
4 appoint the heir-male procreated of my body, and existing at the expiration of
4 the said 38 years ; whom failing, I do nominate and appoint my eldest daughter
' ' then in life.'
March 6. 1837. In 1796 the late John Thorn obtained a tack from the then
3d Division. proprietors of the lands of Pettans, (now belonging to the advo-
Lord Medwyn. cator,) whereby they let * to the said John Thom, his heirs and
, M'K. « assignees, all and haill the said lands of Pettans, &c. for the
* space of 38 years ;* and c after the expiry of the foresaid space
' of 88 years, for and during the lifetime of any person to be con-
< descended upon by the said John Thom, by a writing under his
' hand, before the expiration of the foresaid space of 88 years.1 In
the following year Thom executed a deed, proceeding on the nar-
rative of the tack, and that he was resolved to exercise the power
thereby committed to him of naming a person to. enjoy the life-
rent of the tack after the expiry of the 88 years, and containing
a nomination in these terms : — ' I do hereby nominate and appoint
' the heir-male procreated of my own body, and existing at die
* expiration of the said 88 years, whom failing, I do name and
* appoint my eldest daughter then in life ; and failing daughters
* procreated of my own body, and existing at the expiration of the
' foresaid space, I do name and appoint the heir-male of the body
* of my eldest daughter then in life, whom failing,1 &c, going on
with certain further appointments. It did not appear from the
record when Thom died, but he never had any heir-male of his
body ; and on the expiration of the 88 years at Whitsunday 1826,
Margaret Thom (who had married a person named Fiddes) wis
his eldest daughter in existence. In the March preceding, the
landlord raised a summons of removing, on which a new deed of
nomination, appointing Margaret Thom by name, in case the ap-
pointment by her father should not be sustained, was executed
by the survivor of certain trustees td whom Thom had, by a trust-
COURT OF SESSION. 58S
deed of settlement, dated in 1798, conveyed the tack along with his
other property, for certain purposes therein mentioned, but not
containing any power of nomination; and declaring that the trust-
deed should not be construed to revoke the previous nomination.
It was then pleaded in defence against the action of removing,
1. That the description by Thorn of his eldest daughter in ex-
istence at the expiry of the 38 years was a sufficient • conde-
' scending' on the- person who was to enjoy the liferent tack to
constitute a valid exercise of the power in the lease, the more
especially as there never existed an heir-male of his body to
whom it could be said she had succeeded as a substitute ; and in
regard to the further nominations after her, even if they were in-
valid, that could not affect her nomination, which was sufficient,
being in reality the first effectual nomination ; and,
2. That the tack being granted to * assignees/ the assignation in
Thorn's trust-deed of settlement carried to his trustees the whole
rights under the tack, and, inter alia, the right to condescend on
the person who should enjoy a liferent after the expiry of the
88 years; and the surviving trustee having executed a nomina-
tion of Margaret Thorn within the period allowed in the lease,
that she was entitled to the liferent in virtue thereof, even if her
fathers nomination of her should not be sustained.
To this it was answered,
1. That the clause in the lease merely gave a power to specify
an individual on the contingency of whose life the tack should
continue effectual after the expiration of the 88 years, but not to
appoint a series of substitutes, the existence of any one of whom
at the expiry of the 88 years would secure a liferent in addition ;
—-that it was incompetent also to nominate a person by descrip-
tion, or otherwise than by naming the individual ; and that even if it
were competent to do so, the nomination had fallen by the failure
of the person first described, viz. the heir-male of the lessee ; and,
2. That the trust-deed contained no power to the trustees to
nominate, and indeed excluded it, as it declared that it should not
be construed to revoke the previous deed of nomination; but, be-
sides that, the power to nominate was clearly, by the terms of the
tack, limited to John Thorn personally and individually.
The Sheriff having assoilzied, on die ground, as stated in a
note, that ' the eldest daughter was sufficiently condescended on
4 by the original tacksman in terms of the lease/ Irvine, the land-
lord, brought an advocation, in which the Lord Ordinary re-
mitted simpliciter* and the Court unanimously adhered.
Loan Pitmilly—I do not say that this case is not attended with
difficulty, but on the whole I think the Sheriffs interlocutor is right,
£96 CASES DECIDED IN THE
and on the ground etatod in bis note. The case of Carnegie* quoted
at the bar was totally different from this. I think that no advantage
can be derived from the nomination by the trustees, who were ap-
pointed merely for the purposes set forth in the trust-deed, which
excludes such 8 power in the trustees by the exception of the
previous nomination, on which alone the respondent's right must
stand. Now it is admitted, that after naming one person. Thorn
might bare changed and named another, and I do not see that that
would have been much different from what he has done, which I
consider to have been a bond fide exercise of the power.
Lord Allow ay. — I was a little puzzled at first, but my settled
opinion does not differ substantially from that of Lord Pitmilly. Very
' difficult questions might have arisen, as to whether assignees or heirs
could have named the person to have enjoyed the liferent, there being
no clause prohibiting them, and every privilege in a lease being on-
derstood to be intended for the tenant in it ; but the only question
here necessary to be decided is, whether Thorn has exercised the
power given him in the lease? The nomination was made 27 years
before the expiry of the fixed period ; and supposing he had then no
family, it was natural for him to name them in their order. But
there never was an heir-male, so that the eldest daughter is in reality
the first person called ; and giving a fair bona fide construction to the
lease, I think she has been sufficiently condescended on.
Lord Glenxee. — I am entirely of the same opinion. A landlord, in
giving a lease of this kind, cannot be supposed to have calculated,
♦ in stipulating the terms of it, on the chance of an effectual nomina-
tion not being made. Supposing even that the word had been * to name'
instead of to * condescend on,' Thorn might surely have named any
one of two persons who might be alive at the expiry of the 38 years.
Instead of that, he names his son, if he has one then alive, — and then,
in the event of his death, be names his daughter. He has therefore
condescended on the person who is to take, mnd that is all which can
be required.
Lord Justicx-Clerk- — I have little to add to what has been said. I
think, however, the power was personal to Thorn ; but giving to the
lease the fair bona fide construction to which such contracts are en*
titled, I think he has sufficiently exercised the power, especially
when I consider how similar processes have been dealt with, as that in
regard to the Roxburghe estate and honours, where, finder a power to
nominate the heir, a nomination to the eldest daughter of Harry
Lord Ker was held effectual to the fourth daughter, who came, by
the death of the sisters, to be the eldest. It is of no consequence
that here the heirs of the other daughters were added ; no son having
ever existed, the eldest daughter has been sufficiently condescended on.
P. Irvine, W. S. — J. Greig, W. S. — Agents.
1. Shaw's Appeal Cases, p. 114.
COUfcT OF SESSION. 687
J. and W. Macfarlane, Complainers,— J^rfy— G. Napier. No. 273.
A. B. Respondent.— Z>. ofF. Moncreiff—Rutherfurd.
Justice , Administration of— Clerk of Court— Title to Pursue— Expenses.— A Jus-
tice of Peace Depute-clerk for one of the districts of a county, who was also
clerk to the road trustees of the same district, having in the latter capacity raised
in his own name an action before the Justices of the Peace of his own district
against two parties, accusing them of evasion of toil, and concluding for penal-
ties, part of which was payable to himself; and having conducted the proceed,
ings by his own clerk, who also officiated as clerk of Court, he himself not hav-
ing attended personally, and one of the parties only having been cited, and de-
cree pronounced against him— Held, in. a petition and complaint presented by
both of these parties, without the concourse of the public prosecutor,— 1.— That
the party not cited had no title to pursue, but that the other had ;— 2^— That
the clerk had been guilty of malversation in office, and therefore suspended for
one year, and found liable in expenses ;— but^-3.— That these expenses were not
to be taxed as between agent and client.
The respondent was one of two joint clerks-depute to the March 6. 1887.
Justices of Peace of a particular district of a county, and he was 2d Dmsiow .
likewise clerk to the trustees of a road situated in the same dis- p.
trict under a local act of Parliament, which provided that suits
for recovery of penalties under the act might be brought in the
name of the treasurer, collector, clerk, surveyor, tacksman of the
tolls, or any one trustee. In consequence of an information that
the complainers, James and William Macfarlane, had been guilty
of an evasion of one of the tolls, the respondent, as clerk to the
trustees, and by direction of one of their number, presented to the
Justices of Peace of the district in which he was depute-clerk,
a petition praying to have the statutory penalty for evasion of
the toll (one half of which was payable to the prosecutor) in-
flicted on the Macfarlanes, and also to have them fined each
in the sum of £B9 as an indemnity to each of three persons,
viz. the toll-keeper, bis wife, and sister-in-law, whom they were
stated to have assaulted and maltreated. Warrant of appre-
hension was obtained against both the parties, but it was only
executed against William Macfarlane, who obtained his libera-
tion by consigning jPIO in terms of the general road act* De-
fences were thereafter given in for William, and a proof was al-
lowed, and taken in presence of two Justices, one of whom was
the maternal uncle of the toll-keeper. In the course of this proof,
objections were taken by Macfarlane to the admissibility as wit-
nesses of the toll-keeper, and the two members of his family, in
whose favour there was a conclusion for a sum ( in indemnity1 in
the complaint; but thiB objection was repelled by the Justices,
and they were allowed to be examined cum nota. During this
procedure, the respondent did not attend the Court personally.
One of the clerks of a firm of which he was a partner, however,
5S8 CASES DECIDED IN THE
conducted the cause for the prosecution, and acted as clerk of
Court in writing down the depositions of the witnesses, (but this
was alleged to have been with concurrence of the agent for Macfar-
lane,) and also in writing out the several interlocutors, with the ex-
ception of the final judgment, which was written by one of the
Justices.. After the proof had been taken, the Justices submitted
the process to the consideration of the principal clerk of the Justice
of Peace Court, (who was also Sheriff-substitute of the county,)
and received his opinion that an evasion of toll was proved, and that
a mitigated penalty should be imposed on Macfarlane, with ex-
penses. The Justices then fixed a day for pronouncing judg-
ment, and directed the parties on both sides to attend. The re-
spondent accordingly attended, afc did also Macfarlane, along with
an agent, who gave in a minute objecting to the legality of the
process, in respect of the respondent being clerk of the Court in
which he had brought and conducted his suit. The Justices dis-
regarded this objection, and pronounced a judgment drawn out
by one of themselves, whereby 'they found * that William* Macfar-
' lane did attempt to evade the toll/ and fined him * in the mitigated
( penalty of £% sterling, besides £& of expenses.* A petition and
complaint was thereupon presented to the Court of Session by
James and William Macfarlane, praying to have the respondent
removed or suspended from his office, and found liable in such
penalties as the fourt should deem proper. This complaint
having been remitted to the Lord Ordinary, his Lordship, after
making up the record, reported the cause on Cases to the Court.
For the complainers it was pleaded,
1. That, in virtue of the act of sederunt of 6th March 178S, it
was illegal for any one to conduct a cause as agent, either by him*
' self or by confident persons, in a court in which he held the office
of Clerk ; — that this rule could not be relaxed, more especially as in
this case there was no necessity for bringing the action before the
Justices of the particular district where the respondent officiated,
it being competent to have brought the suit before the Sheriff or
other Justices ; or, as the complainers resided in another county,
before the Justices or Sheriff of that county ; and it being also
competent to have brought the action in the name of the treasurer,
or of any of the other persons entitled by the road act to sue for
penalties.
2. That the respondent was guilty of malversation in office, in
having acted in the process in question through the medium of
his clerk as clerk of Court, and consequently assessor ta the Jus-
tices; and,
8. That the malversation was aggravated by the injustice done
, COURT OF SESSION. 539
to the complainers in one of the Justices, who was uncle to the toll-
keeper, being allowed to sit and judge in the cause, and by the toll-
keeper and two other persons, in whose favour there were pecuniary
conclusions in the petition, having been admitted as witnesses.
On the other hand, the respondent objected to the title of the
complainers to follow out a complaint, concluding merely for pe-
nalties, without the concourse of the public prosecutor, and to that
of James Macfarlane in particular, as the petition never had been
executed against him, and no proceedings had taken place in re-
gard to him ; and on the merits he pleaded in answer,
1. That the respondent, in raising the prosecution, was strictly
performing his duty under the local road act ; and as he conducted
the cause as a party, he was not contravening the act of sederunt,
which relates only to persons acting as agents; and that this ap-
plied more especially in matters under the road acts, in which the
Justices are in use to act without the intervention of a clerk.
2. That he could not be guilty of malversation, unless he had
personally acted as clerk of Court in his own action, which was
not the case, having abstained from officiating in any stage of the
process.
S. That if any. iniquity had been done by the Justices, the
respondent could not be. responsible for it ; but that, in point
of fact, the conclusions for behoof of the toll-keeper and his
family had never been insisted in, so that there was in reality no
.valid objection to their being admitted as witnesses, or to the
uncle sitting as a Justice.
After the cause had been delayed for some time, in order to
determine what sentence should be pronounced, it was now put out,
when the Lord Justice-Clerk observed : — ' After maturely re-
4 considering this case, I am still of opinion that it is necessary
* to mark authoritatively the opinion of the Court The respond-
* ent here acted, I have no doubt, from error in judgment, and
* without any wrong intention ; but we must look to the conse-
* quences of his having unnecessarily brought the case before
* that particular district of Justices where he was clerk, the more
* especially as the road act under which he acted provides several
* different prosecutors, which made it quite unnecessary for him
* to prosecute at all ; and, under all the circumstances, I have to
* propose to your Lordships the following interlocutor :—
The Lords having resumed consideration of this petition and
complaint, with the answers thereto, and Cases ordered by the
" Lord Ordinary, and heard counsel thereon, repel the objections
" to the title of the complainer William Macfarlane to insist in
" the said complaint ; but in respect that the original complaint
€€
540 CASES DECIDED .IN THE
" was not served upon James Macfarlane, nor any procedure
" held therein with regard to him, find that he has not quali-
" fied a sufficient title and interest to support its conclusions :—
" Find that the respondent, in respect of his having, as district
" clerk of the road trustees of shire, instituted a com-
" plaint, concluding not only for the statutory penalty, on account
" of an alleged evasion of the toll of ■ ■ ■ , (the half of which
" penalty was by the statute declared to be payable to himself,)
" but also- for certain other sums as indemnification to James
" Ruchead the toll-keeper, his wife and sister-in-law, who after-
" wards were admitted as witnesses for the complainer cum nota
" in that very process, although no dismissal of the complaint «
" quoad them appears to have been entered on the record, and in
« respect of his having unnecessarily brought the said complaint
" before the Justices of the Peace of the ■ district of the
" county of , in which Court the said respondent then
*' held the office of clerk by deputation from the principal clerk of
" that county, and that part of the proceedings upon this complaint,
" and various parts of the proof led in support thereof, appear to
" have been conducted and written by the clerk of a copartnery,
of which the respondent was then a member, and during which
proof, it also appears that a maternal uncle of the said James
Ruchead actually sat as one of the Justices of the Peace,-— did
act contrary to law, and in a manner subversive of the impar-
tial administration of justice. And the Lords therefore sus-
pend the respondent from his office of depute-clerk of the peace
" of the said county for "the space of twelve calendar months
from and after the first day of April next, and prohibit and
discharge him from. either, directly or indirectly, exercising any
" of the duties, or drawing any part of the emoluments of the
" said office during the foresaid period :— Find him liable in the
expenses of this complaint, allow an account thereof to be given
in, remit the same when lodged to the auditor of Court to tax
" and report, and decern."
The other Judges concurring with his Lordship, judgment
was pronounced accordingly, and the interlocutor ordered to be
inserted in the books of sederunt.
A motion was then made on the part of the complainerstobave
the expenses audited as between agent and client ; but this their
Lordships refused.
thmplamert* Juthoritie$«—k. S. March 6.1783; Sieves/right, Feb. 4. 1786, (A&);
Sellar and Thomson, Feb. II. 1809, (P. C); Campbell, July 10. 18$i, (ante,
Vot.HI. No. 187) ; Adam, July 5. 1884, (Justiciary Reports, p. 119) ; M'MUIan,
Dec. 10. 1825, (ante, Vol. .IV. No. 216) ; Eaafcm, (m*. gtf.)
u
4(
COURT OF SESSION. 541
Re spomient't Authorities as to 7%fc.— Darby, Feb'. 10. 1786, (P. C); M'lntosh,
March 9. 1809, (F. C.) affirmed in House of Lords, Mar. 9. 18 J 9, (1. Blyth, 272) ;
Murray, Dec. 15. 1884, (ante, Vol. HI. No. 200.)
G. and W. Napier, W. S. — Macmillak and Gravt, W. S*— Agents.
A. Maccallum, Suspender.— FuBerkm. No. 274.
J. Spears, Charger. — Skene.
Road Act— Stat. 4. Geo, IF. e. 19.— Held that an exemption from payment of toll
in a local road act, was not derogated from or repealed by a general exemption
of a more limited nature, but which was not inconsistent with the exemption in
the local act being introduced into the subsequent general road act
By the road act for the county of Edinburgh, (49th Geo. III. March 8. 1827.
c. 87,) it is enacted, « That no toll shall be demanded or taken i„j>mnaKm
* for or in respect of carriages, horses, or cattle, employed in Lord Eldin.
c carrying stones or other materials,' be. ' or carrying hay, grain, D.
'or pulse in the straw, potatoes, turnips, or other vegetables,
' flax, hemp or wool, to be laid up in the houses, outhouses, barns,
' or yards of any heritor, tenant, or inhabitant of the said county,
c by whom the same were raised, and not being for sale ; or dung
' or other manure for the improving and manuring of land, not
6 bought, sold, or disposed of, or carried for the purpose of being
* sold or disposed of, but passing to be laid up or placed in the
* outhouses or onsteads, or on the lands of the owner thereof, who
' shall not have bought the same.'
The suspender Maccallum, who was the tenant of the farm of
Flewlands near Edinburgh, and who occupied premises in the
Grassmarket of that city as a cowfeeder and dealer in milk,
was in the practice of bringing from his farm to his cowhouse
agricultural produce, such as hay, grass, turnips, for the use of
his cows, and of carrying out the manure to his farm. In 1814
a question having arisen between him and the tacksman of the
Wright's-houses toll-bar, (through which it was necessary to pass
in going to and from his farm,) whether he was liable to pay toll
on his horses and carts engaged in transporting the produce and
manure, the trustees found he was entitled to be exempted.
By the general turnpike act for Scotland, (4th Geo. IV. c. 19,
§ 2,) it is declared, ' Whereas it is of great importance that one
* uniform system should be adhered to in the laws for regulating
* the management and maintenance of turnpike roads through-
* out that part of Great Britain called Scotland, be it therefore
' enacted, That from and after the passing of this act, all the
c enactments, provisions, matters, and things in this act contained,
4 shall extend to all acts of Parliament now in force, and to all
548 CASES DECIDED IN THE
•
' acts of Parliament which shall hereafter be passed, for mating,
• < widening, turning, amending, repairing, or maintaining any
' turnpike road in that part of Britain called Scotland, (save and
* except as to such enactments, provisions, matters, and things
' as shall be expressly varied, altered, or repealed by any such
' act as shall be hereafter passed.9)
And by the 36th section it is enacted, ' That no toll shall be
' demanded or taken at any toll-bar from any person for any
( horse, or other beast of draught or carriage, employed in carry-
* ing or conveying, having been employed only in carrying or
( conveying on the same day, on the turnpike road on which such
' gate is placed, any ploughs, harrows, or other, implements of
* husbandry, (unless laden also with some other thing not here-
' by exempted from toll,) or any hay, straw, or dung, fodder
' for cattle, and corn in the straw, or other produce of such farm,
' from one part of &ny farm to another*
A question then arose, whether the exemption conferred by
the local statute was not taken away by the general act, so that
Maccallum was thenceforth liable in toll. In order to have this
question tried, Maccallum brought a suspension, and contended,
That although it was true that where there was an absolute incon-
sistency between the respective provisions of the two statutes, it
must be held that those in the local and prior one were repealed
by those in the subsequent and general one ; yet as there was here
no repugnancy between the existence of the exemption in the local
statute, and that in the general statute, and as there was no ex-
press repeal, the original exemption must be held still to exist;
and that although the exemption in the general statute may have
been superfluous with reference to the county of Edinburgh, (see-
ing that a more extensive exemption already existed,) yet this
could not imply a repeal or restriction of that exemption.
To this it was. answered, That it was a general rule, that .pos-
terior statutes are held to derogate from and repeal those previ-
ously enacted and relating to the same subject, except in so far as
these prior statutes, are expressly saved from that effect ; that the
general road act was intended to form one uniform rule through-
out Scotland, and thereby to supersede all the provisions and ex-
emptions of prior local statutes ; that in particular it was. enacted,
in reference to the transporting of agricultural produce and ma-
nure, that there should be only an exemption in passing from
one part of a farm to another, whereas Maccallum claimed a more
extensive exemption, which was not only not sanctioned by the
statute,, but was inconsistent with it ; and being, so, it must be
held, according to his own principle, to have been derogated from
and repealed.
COURT OF SESSION. 54S
' The Court, on the report of the Lord Ordinary, unanimously
suspended the letters.
Lord Balgray*— It was not the intention of the general act to alter
specific provisions in local statutes. In consequence of the great
variety of existing statutes relative to the King's highway, it was
found extremely difficult to carry them into execution, and a com-
mittee of Scottish and English gentlemen was appointed to endea-
vour to introduce a uniform system ; but the chief object was to avoid
the very great expense of obtaining local acts. With that view,
every thing was introduced into the general statute which was usually
found in local acts, so that when it should be necessary to procure a
new local act, it might be obtained at much less expense than for-
merly. But it was certainly never intended to alter the specific pro-
visions already existing in the prior local acts. In order to repeal
such provisions, there must be in the general act an enactment to
that effect ; and more especially where an indemnity has been given,
there must either be a repeal of it, or an enactment so inconsistent
with it as to amount to a repeal. But that is not the case here, and
therefore I think that this party is entitled to the benefit of the ex-
emption in the local act.
The other Judges concurred.
Stupe.uler'* Authority.— OBaiir.c, July 11. 1826, (ante, Vol. IV. No. 5070
Hotchkis and Mkiklbjohn, W. S-— J. Balfour, W. S#— Agents.
Akde&son, Child, and Child, Petitioners.— Greenshields. No. 275.
Public Record* <7Yan*mi$sion of /Voeewe*.— Warrant refused for transmitting an
extracted process, to be produced in one depending, in respect of the facility of
obtaining certified excerpts.
A petition at the instance of Messrs. Anderson, Child, and March 8. 1827.
Child, praying for a warrant on the Lord Clerk Register and a© Division.
his deputies to transmit a process, the decree in which had been p.
extracted, in order to be produced in one presently depending in
this Court, having been moved,
Mr. Thomson, Clerk Register Depute, appeared at the Bar,
and stated, that, in consequence of a regulation lately established,
all extracted processes were carefully preserved ; but that it would
scarcely be possible to do this effectually, if they were allowed
to be transmitted to pending processes, where parts of them might
be lost, and from which there were no meads of forcing them back ;
and he further stated that it was quite unnecessary, as parties,
might have constant access to them, and obtain extracts or certi-
fied copies of such parts as they wished to produce in other pro-
▼OX. v. 2 M
544
CASES DECIDED IN THE
The petitioners then stated that they would have been
perfectly satisfied with excerpts of parts of the papers, but that
they had supposed that it would be necessary to take au extract
of the whole process. The Clerk Register Depute, however,
having stated, that although an ' extract/ properly speaking, was
of the whole process, yet that certified excerpts of any sort could
always be obtained, the Court, in respect of the facility of obtain-
ing certified excerpts, refused the petition. .
no
Jourt were agreed that the practice of transmitting
longer to be allowed, wherever excerpts would
pose.
W. Patrick, W. S. Agent
ought
the pur-
No. 276.
D. Chalmers, Petitioner. — Cowan.
W. Ogilvie, Respondent. — A. iPNeUL
March 8. 1827. Ikhibition recalled in part of consent, and quoad ultra on
aDDr^sTow. caution.
M'K.
C. Howden, W. S. Agent
No. 277.
March 8. 1837.
3d Dinsioir.
P.
H. Gordon, Petitioner.— -D. qfF. Moncreiff— Gordon —
Lumsden.
Mrs. Jane Duncan, Respondent— Jeffrey— Ridker/turd.
Inhibition, Recoil of.— Court refused to recall, without caution, inhibition used
against the proprietor of an entailed estate, on the dependence of an action con-
taining alternative conclusions of declarator of marriage, or of damages for se-
duction.
Mas. Jane Duncan having raised an action against Gordon
before the Commissaries, containing alternative conclusions of de-
clarator of marriage, or of damages for seduction, (laid at £5000)
executed inhibition on the dependence, and used arrestments in
the hands of Gordon's tenants. The arrestments were loosed by
Gordon on caution to the extent of i?1000, and he then applied
to have the inhibition recalled without caution, on the grounds,
1. That all his property was strictly entailed, and was thus se-
cured from alienation.
2. That- the conclusion for declarator of marriage was of a
nature which could not be secured by inhibition, and that the
conclusion for damages could not be insisted in, til the declarator
of marriage was finally discussed, which brought the case to the
COURT OP SESSION. 64&
principle adopted in the Bargany cause, (Hamilton v. Fullerton,
March 4. 18SS) ; and,
S. That caution to the extent of £1000 had been already found
in loosing the arrestments.
To this it was answered,
1. That a strict entail did not prevent the granting of heritable
securities for the liferent of the heir in possession.
2. That, even in reference to the declarator of marriage, the re-
spondent's interests might be materially affected by the acts of the
petitioner as to his heritable property, but that the conclusion for
damages was competently brought, and was a sufficient ground
for maintaining the inhibition, unless caution were found ; and,
8. That the caution found in loosing the arrestments could
only be available to the extent of the rents which may have been
in the tenant's hands, the amount of which was quite uncertain ;
and at all events that it did not afford security corresponding to
the extent of the damages which would necessarily be awarded
in the circumstances of the case, should the respondent succeed
in that conclusion of her libel.
The Court recalled the inhibition, but only on caution for
£1500, in addition to that found in loosing the arrestments.
Loan Justice-Clerk. — In this stage we cannot take for granted what
the result of the action may be. It is, however, a depending pro-
cess with competent conclusions ; and though the petitioner's estates
are entailed, great injury might be done in regard to his liferent in-
terest, and I do not think that we can recall the inhibition without
caution. I should think that in the circumstances the caution ought
to be for £1500, in addition to that found in loosing the arrestments.
The Bargany case was very different, and does not rule the present.
The other Judges concurred.
•'# Authoring.— -Duncan, Jan. 22. 1822, (ante, Vol. I. No. 296); Turn-
bull, July 8. 1823, (ante, Vol. II. No. 443) ; Hamilton, March 4. 1823, (ante,
Vol. II. Nos. 241, 242) ; Earl of Stair, Dec. 21. 1822, (ante, Vol. II. Noi. 105,
106.)
Reipemdent'* Authority. —X*mic, Feb. 15. 1810, (F. C.)
J. Lyon, — Finlayson and Bremneu, W. S. — Agents.
2 m 2
546 CASES DECIDED IN THE
No. 278. J* Baikie and Others, Suspendets.-^Sktne—Matheson.
Rev. W. Logie, Charger. — Sir J. Connett — Marshall.
Mante.— Circumstances in which the minister of a royal burgh, with a considerable
extent of landward parish, was found entitled to a manse ; — and Observed, that
he would have been so entitled under the act 1663, independently of special cir-
cumstances.
9
• *
March 8. 1827. The parish of Kirkwall and St. Ola consists of the burgh of
2d ~ Kirkwall, with a considerable extent of parish to landward. It
Ld. Mackenzie, had been formerly the seat of a cathedral, and part of the old
M'K. cathedral still forms the parish church. At some former period
there had been a manse for the parson or vicar of the parish,
which was frequently mentioned in the records of the presbytery
of Orkney as one to which the minister had right, and be did
possess a glebe in the parish. There also appeared on the records
of the presbytery a designation in 1639 of a house adjoining the
Bishop's palace (which had been possessed by the then incum-
bent's immediate predecessors) ' to be a perpetual manse, accord-
( ing to the laws of the kingdom, and custom of the church/ This
* manse had apparently been allowed to become ruinous, for the
minutes of the kirk-session in 1672 and 1689 contain entries
showing that the minister then received a certain sum yearly for
house-mails out of the kirk treasury. Shortly after the Revolu-
tion, however, an application was made to the presbytery, who,
on the 5th of July 1699, appointed tradesmen ' to inspect the
' manse/ and next day convened the heritors of the parish along
with the magistrates of the burgh and the elders, before whom
the tradesmen were sworn to make a true report. A report
was accordingly given in, but no further procedure appeared
on the records of the presbytery, which were incomplete, — a
volume extending from 1701 to 1716 having been lost. In 1748,
Mr. Edward Irvine, the then incumbent, presented a petition to
the presbytery, stating that the manse, offices, &c, lying on the
south end of the old palace, were ruinous, and praying tbe pres-
bytery to take the usual steps, in order to have them repaired.
The heritors were called as parties to this application ; but some
opposition having been made by them, Lord Morton, then the
King's Donatory in the Earldom of Orkney, presented .£1000
Scots to the magistrates of Kirkwall * for building a manse to
' the minister of Kirkwall.9 The opposition was then with-
drawn ; and the presbytery, having led a proof to establish that
the ruinous house asked to be rebuilt was the old manse belong-
ing to the minister of the parish, thereupon designed that
COURT OP SESSION. 547
■
place as a manse, and the manse was built there accordingly. In
1793, an application having been made extrajudicially to the he-
ritors to repair the manse, a meeting was held, when they agreed
1 that £80 should be immediately furnished by the town and
( parish, and laid out in repairing the manse.9 Of this sum the
Magistrates of Kirkwall agreed to contribute -£30, being a sum
of vacant stipend of which they had the disposal ; and the meet-
ing then resolved that the remaining £50 ' should be immediate-
* ly levied and paid into the hands of the provost, and that he
c should immediately employ workmen, and carry on the ne-
* cessary repairs of the manse ;' but being of opinion that this
sum ' should be levied by a general subscription of the heritors
* and inhabitants of the burgh of Kirkwall and parish of St. Ola/
they resolved that a subscription-paper should be sent round for
that purpose. This was accordingly done ; the money was col-
lected, and the manse repaired; but having again fallen into
great disrepair, and being extremely deficient in accommodation,
the present charger Mr. Logie, in 1825, shortly after his induc-
tion, presented an application to the presbytery, praying for an
inspection, &c. - After the usual procedure, the presbytery con-
demned the old manse, approved of plans and estimates for build-
ing a new one, and decerned for the necessary amount (about
£700) against the several heritors, conform to their valued
rents ; but, in respect of there being lands in the burgh and to
landward not valued, reserving * to the above heritors and their
' foresaids such relief from the feuars, proprietors, or corporation
* of the burgh of Kirkwall, or from the proprietors of land not
' in the valuation, as they may find competent, and legally exi-
' gible by them.9
Baikie and other heritors then brought a suspension, on the
grounds,-inter alia,
1. That the minister of a royal burgh, though the parish was
partly landward, was not entitled to a manse under the act 1663,
c. 21, agreeably to the decision in the case of Auld v. the Magi-
strates of Ayr.
2. That the special circumstances in the case were not such as
to warrant the decree for a manse, even if the presbytery had
jurisdiction to decern for a manse in respect of specialties ; but
that it had been found in the same case of Auld that presbyteries
have no power to design manses, except under the act 1663.
For the minister, in addition to a personal objection to certain
of the suspenders, it was contended,
1. That, on the general point, the case of Auld was rather in
favour of the right of the minister of a burgh, with an attached
648 CASES DECIDED IN THE
landward parish, to a manse, independent of specialties, as, with
the exception of the three Judges who formed the majority in this
Division at giving judgment, the whole Court were of opinion
that the minister was entitled to a manse under the act 1663 ;
and,
2. That the various circumstances in this case, and particu-
larly the church being a cathedral church-— there being a glebe-
there having formerly been a manse — there having been a desig-
nation by the presbytery in 1689, and again in 1743, and the
manse having been repaired by the heritors in 1793, were of
themselves sufficient to entitle him to a manse, independent of the
general question of his right under the act 1663 ;— find that the
decision in the case of Auld, finding that the presbytery had no
jurisdiction except under the statute, was very doubtful, because
presbyteries had succeeded to the powers of the Bishop's Courts,
which originally had jurisdiction as to manses, independent of
statute law; but, besides, that the specialty of there having
formerly been a manse brought the case within the act 1663,
even if, on the general point, the Court should adhere to the de-
cision in the case of Auld; and that the suspenders had proro-
gated the jurisdiction.
The Lord Ordinary having reported the cause on Cases, the
Court found ' the charger entitled to have a manse repaired or
' rebuilt, under the authority of the presbytery ;' and remitted to
the Lord Ordinary to proceed further in the cause, as to his
Lordship should seem just.
Their Lordships were equally clear in regard to the minister's right to
a manse on the general point, as on the specialties; and Lord Allo-
way, who, as an heritor of the parish, had not given his opinio* in
the case of Auld, stated that he would have agreed with the consult-
ed Judges, that, independently of all specialties, the minister there
was entitled to a manse under the act 1663.
Suspenders* Authority*— Auld, Jane 16. 1826, (ante, Vol. IV. No. 81.)
Chargers* Authorities.— Anderston, Dec. 17. 1664, (£121); Fullerton, Dec. 17-
1769, (F. C); Williamson, March 26. 1685, (5121); Dobie, March S. 18M,
(App. Manse, 3) ; Dunfermline, Nov. 19. 1815, (F. C.) ; Irvine, Feb. 25. 1809;
Opinions of Judges in Auld, ut supra*
J. Phin, — Murray and htGLis, W. S— Agents.
COURT OF SESSION. 549
M. Malcomsok and Others, Pursuers.— D. qfF. Moncreiff— No. 279 •
Pyper.
R. Heddle, Defender.— Sol^-Gen. Hope—Murdoch.
This was a question of a special nature, relative to the right March 9. 1827.
to certain udal lands in the island of Walls, Orkney, in which iOT Division,
the Lord Ordinary assoilzied the defender ; but the Court altered, Lords Eidin
and decerned in terms of the libel. Bnd Medwyn.
s.
R. Urquhart, — A. Dallas, W. S. — Agents.
A. Wight, Suspender. — Cunmghame. No. 280.
Isabella Dewak, Charger. — More.
given
nmary DWgtnce.—A. biD of suspension passed simpliciter of t charge
by a married woman without the concurrence of her husband.
The charger, who was a married woman, some years ago ob- March 9. 1887.
tained a decree at her own instance, and without the concurrence j D
of her husband, against Wight, notwithstanding a defence stated Bill-Chamber.
by him against the competency of such an action. Her husband Lord Newton,
afterwards died, but she married a second time, and diligence Ha
was then raised on the decree at her own instance alone. Against
this a suspension was presented by Wight on various grounds,
but particularly on the incompetency of the diligence.
To this it was answered,
1. That she carried on business on her own account, and that
the jus mariti was excluded by her contract of marriage ; and,
2. That the defence had been pleaded and repelled in the action.
The Lord Ordinary refused the bill, and observed in a note,
that € all the grounds of suspension appear to the Lord Ordinary
' to be sufficiently obviated in the answers, but that of the original
* action having been raised by the respondent, then a married
* woman, without the husband's concurrence. But as it appears
( that the objection was stated as a defence in that action, and
« repelled by the Sheriff, this judgment, so long as it stands un-
* reduced, is a res judicata against the complainer, which renders
* it incompetent to entertain the objection in the present proceed-
'nigs.*
Wight having reclaimed, and contended that independent of
the objection to the decree, still, as she had been married since
obtaining it, the concurrence of her husband was necessary, even
although his jus mariti had been excluded; and the Court, on that
ground, unanimously altered, and passed the bill simpliciter.
N. W. Robertson,— Campbell and Mack, W. S<— Agents.
550 CASES DECIDED IN THE
No. 281. A. Gordon, Complainer. — Sol.-Gen. Hope — FuUerton—Keay.
Earl of Fife and Others, Respondents. — Thomson — Robinson,
Satin*— Freehold Qualification.— A party claiming to be enrolled as a freeholder,
having founded on a charter from Geo. III. to A., and a disposition and assigna-
tion by A. to the claimant in liferent, and to A. and his heirs and assignees in
fee ; and having produced an instrument of Basine in which the only Soverc ign
named was Geo. IV., and in which it was stated that the attorney held a charter
by which ' diet. & D. N.' had conveyed the lands to A., and also a disposition
and assignation by which A. had disponed the lands to the claimant in liferent,
and to the heirs and assignees of A. in fee— Held that as there was satisfactory
evidence on the face of the instrument to identify the charter and disposition
there recited with those founded on, the blunders were not material, and that the
claimant was entitled to be enrolled.
March 9. 1827. Alexandee G Oft don claimed to be enrolled as a freeholder
"T of thte county of Banff at a meeting held, on the 29th of June
Lord Meadow- f°r l^e election of a representative, and in support of his claim
baok* he produced, 1st, A charter of resignation under the Great Seal
in favour of Theodore M orison, Esq. dated 20th September 1814,
and sealed the 7th March 1815 ; 2d, A disposition and assigna-
tion by which Mr. Morison disponed ' to and in favour of the
( said Alexander Gordon in liferent, for his liferent use allenarly,
' and to the said Theodore Morison himself, and his own heirs
* and assignees whomsoever in fee,9 the lands contained in the
charter, and assigned to him the unexecuted precept of sasine;
and, Sdly, An instrument of sasine, dated the 7th, and recorded
the 13th of May 1825. This instrument commenced in these
.terms :— c In Dei nomine, amen. Per hoc presens publicum in-
' strumentum cunctis pateat evidenter et sit notum, quod septimo
die mensis Maij, anno Domini millesimo octingentesimo et vigesi-
mo quinto, regnique Sefenissimi Domini Nostri Georgii Quarti,
Dei gratis, Britanniarum Regis, fideiquc defensoris, anno sexto,
* in mei notarii publici et testium subscribentium pr*esenti& per-
* sonaliter coroparuit Jacobus Barclay/ &c as attorney ; and after
mentioning the appearance of the bailie, and that, in virtue of the
clause of dispensation c infra mentionat.,' the parties went to the
place therein pointed out for taking sasine, the deed proceeded
to recite that 'the attorney came on the ground, ' habens et in
4 suis manibus tenens quandam cartam resignationis sub sigillo
* per Unionis tractatum custodiend., et in Scotia vice et loco
' Magni Sigilli ejusdem utend. ordinat. de data ut infra script, et
' prseceptum sasinae sub insertum in se continen. ; per quam car-
' tarn diet S. D. N. Rex, cum consensu Baronum sui Scaccarii in
' Scotia, dedit, concessit, et disposuit., ac prose, suisque regiis sues
* cessoribus confirnjavit, Theodore Morison, armigero d* Bpgnie,
c
c
<
COURT OF SESSION. 561
' ejusque haeredibus et assignatis quibuscunque, hsereditarie et irre-
* dimabiliter, terras aliaque postea mentionak,* &c. Then, after
enumerating the lands, &c. the instrument proceeded thus : — ' Ac
* etiam habens et in suis manibus tenens diet. Jacobus Barclay,
' procurator et actornatus antedict., quandam dispositionem et as-
4 signationem de data septimo die Maii anno millesimo octingen-
* tesimo et vigesimo quinto, fact, et concess. per diet. Tbeodorum
* Morison, ad et in favorem dicti Alexandri Gordon, in vitali te-
« ditu, et sui ipsius in feodo, per quam diet. Theodorus Morison,
* propter causas inibi specificat., vendidit, alienavit, disposuit, ad
* et in favorem dicti Alexandri Gordon, in vitali reditu, pro vitali
* reditu usu solummodo, et haeredum assignatorumque quorum-
4 cunque diet. Theodori Morison sui ipsius in feodo, hsereditarie
« et irredimabiliter, totas,' &c. It also bore that an assignation
had been granted of the unexecuted precept in the chatter, in
order that by virtue ' diet, praecepti sasinae diet. Alexander Gor-
* don in vitali reditu, et diet. Theodorus Morison ejusque prsedict.
c in feodo, promptius infeodarentur,' &c.
The usual procedure was then narrated, and the precept of
sasine contained in the charter was recited, specifying the dates,
and it was then stated that the bailie gave sasine to Mr. Gordon
in liferent, but not to the fiar. In addition to these titles, he also
produced the requisite certificate of valuation.
Against this claim it was objected by the Earl of Fife,
* 1. That the terms of the instrument of sasine in his favour
are not consistent with those of the disposition and assignation
granted to him by Theodore Morison, Esq. of Bognie, which
he has produced with his claim. By the disposition and assig-
nation produced, Mr. Morison conveys the lands upon which
Mr. Gordon claims to be enrolled, to and in favour of the
said Alexander Gordon in liferent for his liferent use only,
and to the said Theodore Morison, himself, and his own heirs
and assignees whomsoever, in fee. But by the disposition and
assignation, as it is recited in the instrument of sasine, Mr.
Morison is said to have conveyed the lands ' ad et in favorem
dicti Alexandri Gordon in vitali reditu, pro vitali reditu usu
solummodo, et haeredum assignatorumque quorumcunque diet.
* Theodori Morison sui ipsius in feodo ;'— that is, * to and in
* favour of the said .Alexander Gordon in liferent for his liferent
' use only, and the heirs and assignees whomsoever of the said
* Theodore Morison himself in fee,9 — in place of, ( to the said
* Theodore Morison himself, and his heirs and assignees whom-
* soever, in fee.9
* The instrument of sasine being thus disconform to the dis-
fiSS CASES DECIDED IN THE
* position and assignation produced, as one of its essential war-
4 rants, it is clear either that the disposition and assignation has
4 not been correctly deduced in the instrument of sasine, or that
4 sasine has been taken upon a different disposition and aasigna-
4 tion from that now founded on ; and, in either case, the claimant
' 4 has not produced a sufficient title upon which he pan claim to
4 be enrolled ; and,
' & That the instrument of sasine produced proceeds upon a
4 charter granted by and in the reign of his Majesty King George
4 the Fourth ; whereas the charter produced is granted by and
' in the reign of his late Majesty King George the Third. The
4 instrument of sasine being thus disconform to the charter pro-
4 duced, as one of its essential warrants; there is no sufficient title
4 upon which the claimant can claim to be enrolled.1
There was also an objection of nominal and fictitious, but that
was not insisted in.
To this it was answered,
4 1. That the conveyance in the claimant's favour is described
4 with sufficient accuracy in the instrument of sasine. It is de-
4 scribed by its date, and as conveying the lands specified in the
4 claim. It is described as having been granted 4 ad et in favorem
44 died Alexandri Gordon in vitali reditu, et sui ipsrasin feodo,' —
4 that is, of Theodore Morison himself. It is further described as
4 having been granted for the purpose of infefting the said Akx-
4 ander Gordon in liferent, 4 et diet. Theodori Morison ejqsque
44 prsedicti in feodo.' In these circumstances, the omission of the
4 word 4 Theodori Morison* in one particular passage is quite
* immaterial/
4 2. That the second objection proceeds upon a misconstrue*
4 tion of the instrument. There is no violation of the rules of
4 grammar in holding that the word diet, applies to the word
4 quam chartam, in which case the sentence must be read thus:
4 By which said charter Our Sovereign Lord/ &c.
4 But, even on the supposition that the word was written die-
4 tus, so as to apply exclusively to S. D. N. Rex, still it is not an
* error in substantialibus, because the charter is otherwise suffi-
4 ciently described for the purpose of identification. It is de*
4 scribed by its date, by the date of sealing* and- as conveying cer-
4 tain lands by name. It is further described as containing 4 the
44 precept of sasine after insert/ which, precept is fully engrossed
4 in the instrument
4 The date and other particulars thus distinctly set forth de-
' monstrate that the statement of its being granted by the pre*
COURT OF SESSION. 559
' sent King, even if it contained such a statement, must be a cleri-
< cal error.'
A majority of the freeholders having sustained the above ob-
jection, Mr. Gordon presented a petition and complaint, which,
after having been remitted to the Lord Ordinary for preparation,
and having been thereafter reported, and the Court having been
equally divided in opinion, a hearing in presence wa9 appointed
before the whole Judges ; on advising which, their Lordships, by
a majority, repelled the objections, and found that he ought to
have been admitted upon the roll of freeholders of the county of
Banff, and granted warrant accordingly ; but found no expenses
due.
Loan Justice-Clejuc — I admit that this is a question of difficulty,
and have made up my opinion with much hesitation. In judging
of the case, I consider that we are bound to regard it as if it in*
volved a patrimonial question arising out of the feudal institutions—
as if the parties were contending here for a substantial estate, and
not merely as to an enrolment in the present state of the titles, I also
admit that much weight is due to the circumstance, that the objec-
tions are here pointed against a public instrument; and that there is
a distinction between an instrument of that nature and a private deed.
In the latter case, our duty is to ascertain and carry into effect the
will of the granter ; and therefore more indulgence may be there
given as to irregularities, than to those occurring in an important
public instrument. The greater number of the decisions which have
been quoted, have reference to private deeds, and not to such instru-
jneuts. Having made these preliminary observations, I shall now
proceed to the objections, which are two in number ; and in. doing
so, I shall first consider tbe second objection.
1. That objection is, that tbe notary, in reciting the titles of the
liferenter and fiar, has made a blunder in describing them. We must,
however, alwayB keep in view that this sasine is founded on, not by
the fiar, nor to show that he has a feudal estate, but exclusively by
the liferenter ; and tbe question therefore comes to be, whether this
sasine is good in favour of the liferenter ? By the statute 1693, c 35,
it is ordered that titles shall be deduced, ' otherwise to be void and
' null.' If, therefore, they be not deduced in due form, the conse-
quence is pointed out to us in clear language ; and I wish extremely
that the same plain rule had been laid down to us with regard to every
deviation from established form of sasines, and that a particular one
had been given, which, if neglected, would have inferred nullity. But
no such form has been prescribed, and no such penalty has been
enacted; and therefore the question I have to ask myself, after
perusing this sasine, is, In whose favour is it taken ; and is there on
the face of it such a deduction, and such a description of the titles
554 CASES DECIDED IN THE
of the party claiming, as we ought to sustain? Now the party
claiming, it will be always recollected, is the liferenter ; and there it
no pretence* that, so far as A* is concerned, any error has been com-
mitted. The only error which is said to exist, relates to Theodore
Morison. In describing the assignation, the notary states it to hare
been granted to the complainer in liferent, and to the heirs and as-
signees of Theodore Morison in fee ; whereas the assignation pro-
duced bears to be to Theodore Morison, and his heirs and assignees,
in fee. But in the subsequent part of the instrument a correct state-
ment of the title is given. It is there said to be a disposition in fa-
vour of the complainer in liferent, and Mr. Morison in fee ; so that
it is impossible to entertain the shadow of a doubt, that the deed
described is the one founded on. But supposing this should be re-
garded as a blunder, I apprehend that it can he of no avail against
the liferenter. In the case of Fisher, it was decided that where the
liferenter alone was claiming, it was not necessary to refer to the fiar
at all ; and in that of Waldie, that in deducing the titles it was not
requisite to recite the whole contents of the precept, but only that
part of it which was necessary and material for the party taking in-
feftment. Therefore, as the liferenter's right is here set forth unex-
ceptionably, I am of opinion that this objection is not well founded.
2. The next objection is rested on the alleged disconformity be-
tween the instrument of sasine and the charter. Now, with regard
to the attempt which has been made to read the word diet, as dic-
tam, so to make it agree with cartam, instead of dictus, and so refer
to rex, I am perfectly clear that it cannot be listened to. It is plain
from the whole style of this deed that it must refer to rex, and not
to cartam. But although I am of that opinion, still I think we have
sufficient evidence of what the charter was which die attorney had
in his hands. It is true that the instrument begins with mentioning
the year of the reign of George IV., and that it is then stated that
the attorney appeared holding a certain charter of resignation in
his hands, by which ' diet. S. D. N.' gave, &c But, before you come
to these words, reference is made to the clause of dispensation
* infra mentioned ;' and the instrument bears that the charter was of
the date and sealing ' ut et infra script.,' and contained ' prsBceptum
' sasuuB sub insertum.' We are therefore bound to look to the sub-
sequent part of the instrument in order to ascertain what that char-
ter was ; and we there see that it was a. charter of the precise date,
sealing, and nature, as the one founded on by the complainer. It
is therefore demonstrable that it must have been a charter of
George III. ; and I cannot permit myself, in the face of all this evi-
dence, to regard it as a charter of George IV;, merely from the in-
sertion of the word diet. Such being the case, it is impossible to
bold that there may have been two charters,— one of George IH. and
another of George IV. — and that the attorney may have had the
latter in bis hands, because'that is disproved by the date of is** char-
COURT OF SESSION. 665
ter and of the sealing. Indeed, after the couiae of decisions on
subject, (of all of which, however, I cannot approve,) it appears to
me we cannot sustain this objection* In the case of Hamilton we
were unanimously of opinion in the Second Division, that there was
sufficient evidence on the face of. the instrument to show what was
the true date, although not specified ; and we therefore sustained it.
No doubt, it may be said that an improper degree of laxity has been
introduced by these decisions, and perhaps the observation may be
true ; but I do not consider that we are entitled to retrace our steps,
and enforce a rigid strictness, where we have not publicly intimated
that we .would do so. If any such notification had been given, I cer-
tainly would not be disposed to countenance any sort of looseness or
irregularity. But here I do not think that there has been such an
irregularity as to call upon us to declare this Basine null and void ;
and indeed the general rule is, that where the irregularity is not in
essentiaUbus, the sasine is not null, but . the notary is liable to be
punished. In regard to the recording of sasines, the case is very
different; because there are explicit statutes requiring the utmost
accuracy, on pain of nullity. But we have no such statutes in rela-
tion to the sasine itself. I am therefore for repelling both objections,
and sustaining the complaint.
Lord President— I differ entirely from the opinion which has been
delivered. In a general point of view, this is a case of very great
importance ; because, if we are to decide it on the principles which
have been laid down, I apprehend that there will be an end to all
form and regularity in public instruments^ There is a great and
marked distinction between private deeds and public instruments.
In judging of the former, it is our duty to discover the will of the
grantor, and we must interpret the deed one way or another ; but, in ,
a public instrument of this nature, there is no will nor intention to
be discovered. All that the notary has to do, is to certify what
he heard, saw, and did ; and if he certifies that which he did not
hear, nor see, nor what was not done, we cannot inquire as to what
he may have intended to certify. In considering this case, therefore,
aU the decisions as to irregularities in private deeds must be thrown
aside, because tbey rest on a principle entirely different from that
which is applicable here. This is the most solemn public instru-
ment known in the law of Scotland. It begins by an invocation of
the Deity— -by calling on all and sundry to bear witness to the truth
of the statement— and by specifying in the most formal manner the
year of our Lord, and of the reign of the Sovereign. In this parti-
cular case that Sovereign is said to be George IV. ; and then the
notary certifies that the attorney came to the lands holding in his
hands a certain charter. No mention whatever is made of any other
Sovereign than George IV. But it is alleged that the charter was
granted by George III., and not by George IVn and that the notary
has made a blunder, which may be explained by other parts of the
656 CASES DECIDED IN THE
deed; but B«ch a Udodsr, I apprehend, is fatd. If a notary were to
state in the name of God that the attorney held a charter granted
by Charles Hope, Lord President* of the Com* of Session-, whereas,
in point of met! it was granted not by him, bat by David Boyle* Lord
Jnstioe-Clerk, -would that not be a final objection? I apprehend it
would, because the charters cannot be regarded as one and the same.
Now, quomodo constat that there- were not here two charters ? The
lands may have been resigned a second time, and a new charter may
have been got from Geesge IV*; and the conveyancer, in drawing
the sasine, may bare taken the description and precept from the old
charter* and may have sent the new one to- the country. I conceive,
therefore, that this objection is quite fatal
But there is another blunder* It is said by the notary that the at-
torney held in his hands a disposition and assignation in favour of the
heirs and assignees of llieodore Morison in fee r whereas the deed
founded on is not of that description, but is in favour of Theodore Mori-
son himself in foe. Again, in other parts of the instrument, the disposi-
tion is described as being in favour of that person alone, and not of his
. heirs and assignees in foe ; so that it is impossible to ascertain from
this instrument what deed it was which the attorney held in his hands.
It has been said that this part of the description is superfluous, and
that, in giving sasine to a liforenter, it has been decided that it is not
necessary to take notice of the fiar. I can easily understand that
such a decision would be correct, if the recital and description were
confined to the rights of the liforenter ; but if, instead of doing so,
it is set forth that the deed was in favour of one party in liferent
and another in fee, and if it were not true that it was in favour of
that party in fee, this would be a fake and contradictory recital, aod
in my opinion give rise to a fatal objection* Such a case is very dif-
ferent from the one which has been argued upon.
Independent, however, of these observations, and supposing each
of the blunders was not in essentialibus, I cannot go into the doc-
trine that we > are to consider them separately, and as unconnected;
on the contrary, I apprehend that we must take into consideration
the circumstance of the number of blunders. If we pass aver two
blunders to-day, I da not see why wo may not be required to* pass
over three toHnorcow, and four the next day, and so on, tiD at hat
we must sustain any instrument, although it has twenty blunders in
it, each of which, when considered by itself, is of little importance.
But here there is blunder upon blunder*
With regard to the decisions, I apprehend that the* general prin-
ciple of law is, that strictness in regularity of form in deeds and in-
struments sfaal be enforced ; and, therefore; wherever I find * cue
in which that rule has been relaxed, I would look upon it as an ex-
ception, i On the authority *f it, I would give -my decision as to say
other case precisely the same in afl its circumstances ; but if itwere
not soy I woulji not consider it as falling within the exception, but
COURT OF SESSION. 567
within the general rale. Thus, for example, it was held in the ease
of Boyd, that where lands were described in the sasine as those of
Enrne, whereas those olaimed on were those of Carney the objection)
was not fetal, because it was regarded as a mere clerical error ; and
were such a case again to occur, I would bow to that decision* But
I cannot see the principle of arguing from one blunder to support
another ; and that because in some cases we may have passed orer
some blunders, we must establish it as a general rule that all blun-
ders are to be disregarded. On the contrary, I conceive that so long
as public solemn instruments of this nature exist in the law of Scot-
land, we must enforce the utmost strictness ; and that we can only
admit of an exception in such cases as those I hare already men-
tioned. I understand, however, that the majority of your Lordships
are of a different opinion, for which I can only express my sorrow,
as I think the principle involved in such a decision will be extremely
dangerous.
The other Judges did not deliver their opinions, but the state of
the vote stood thus : —
For repelling the objection, Lords Justice-Clerk, Glenlee,
Balgray, Pitmilly, Cringletie, Meadowbank, and Newton.
For sustaining it, Lords President, Gillies, Alloway,
Eldin, and Corehouse. *
inert' Authorities.— Don v. Waldie, Feb. 4. 1813, (F. C.) ; Fisher, July 7.
1824, (ante, Vol. III. No. 166) ; Hamilton, Jan. 84. 1824, (ante, Vol. II. No. 611);
Livingston, March 3. 1768, (15418, Aff.) ; Kirkham* May 81. 1888, (ante, Vol. I.
No. 480) ; Henderson, March 8. 1776, (No. 8. App. Mem. of P.) ; Boyd, Feb. 83.
1832, (ante, Vol. I. No. 395.)
J. Gordon, W. S. — Inolis and Weir, W. S. — Agents.
J. Stewart, Suspender. — Speirs. No. 282.
D. Cameron, Charger. — Jeffrey — G. Napier.
Proett+^CwmgnaUon.—RiXl. of suspension by \ tenant of a charge by an assignee
of the landlord for payment of rent, refused to be passed without caution, not.
withstanding the tenant having raised a multiplepoinding as to the rent, in re-
spect that he intended to resist any application for an order to consign in the
multiplepoinding, on the ground of his having certain claims of retention and
compensation against his landlord*
Cameron obtained from Graham of Gartmore, in 1824, an as- March 9. 1827.
signation to the rents of part of his estates; but the rents were 2d Division.
allowed to be paid to Graham till last August, when the assigna- Bill-Chamber.
tion was intimated to the tenants, who were likewise required to Lord Newton.
pay to another party holding an heritable bond over the same M K*
* A similar decision was pronounced on the same day in a complaint at the in.
of John Gordon against the Earl of Fife.
568 CASES DECIDED IN THE
lands, but subsequently intimated. A multipiepoinding was then
raised in name of the tenants, and they being shortly thereafter
charged by Cameron for payment of the rents fallen due at last
Martinmas, a bill of suspension was presented by Stewart, one
of the tenants, which was passed by the Lord Ordinary on * cau-
* tion or consignation.'
Stewart then reclaimed, and contended that the bill should be
passed without caution, on the ground that, pending a multipie-
poinding, the holder of the fund in medio could not be compelled
to pay to one of the claimants ; more especially as the suspender
and the other tenants had large claims of compensation and re-
tention arising out of their leases, equal in amount to the rent
due.
To this it was answered, That the suspender and the other
tenants maintained that, in consequence of these claims, they were
not bound to consign the rents in the multipiepoinding, which
rendered it necessary that the bill should not be passed without
caution.
The Court required the suspender to state whether he was
willing to consign in the multipiepoinding ; and he having de-
clined to consent to such consignation, their Lordships adhered
to the Lord Ordinary's interlocutor.
G. Dunlop, W. S— G. and W. Napieb, W. S*-*Age&ts.
No. 283. G. Little, Suspender. — Murray — Gillies.
R. A. Oswald and Others, Chargers. — D. qfF. Moncrnff—
Maitland.
March 9. 1827. Interdict — Salmon-Fishing. — In a process of suspension and
2d Division, interdict brought by Little against Oswald and others to prevent
Ld. Mackenzie, their fishing with stake-nets, &c. on the allegation that their fish-
MK- ings were within the river Nith, and not in the Solway, which
was conjoined with a previous process brought in 1816, but al-
lowed to fall asleep, the Lord Ordinary recalled an interdict which
had been granted in that previous process, but not enforced; and
the Court adhered, under condition that Oswald &c. should keep
an account of the salmon caught, and without prejudice to any
new application for an interdict.
W. Martin, — A. Goldie, W. S«— Agents.
COURT OF SESSION. 559
G. Barbour, Advocator. — Mqtiland. No. 284.
VV. Stewart, Respondent. — W. Bell.
Process— Stat. 6. Geo. IK e. 120— Record. — An Inferior Court having pronounced
judgment without mating up a record, a remit made to have this done.
In a process of removing before the Steward of Kirkcudbright March 9. 1837.
at the instance of Barbour against Stewart, the Steward, without 2d Division
ordering condescendences of their respective averments, or male- Ld. criagletie.
ing up a record, ordered ' the parties to appear in Court to an- F.
' swer such questions as may be put by the one to the other re-
' specting the points in controversy,5 and thereupon examined
Stewart, and at the same time took the deposition of M'Naught,
his uncle, as a witness in causa. Having then pronounced an in-
terlocutor assoilzieing Stewart, Barbour brought an advocation,
in which the Lord Ordinary remitted i to the Steward of Kirk-
' cudbright with instructions to recall his interlocutors, and to
' prepare the record by receiving a condescendence and answers,
' with notes of pleas in law, in terms of the act of Parliament and
* act of Sederunt.'
Against this interlocutor Stewart reclaimed, and craved the
Court to allow the record to be amended in this Court ; but this
their Lordships refused, the error being so great, and adhered to
the Lord Ordinary's interlocutor.
A, Blair, W. S.— J. Gray, W. S. — Agents.
J. R. Innes, Esq. Complainer. — Sol-Gen. Hope — Fvllcrton — No. 285.
Keay.
Earl of Fife, Respondent. — Thomson — Robinson.
Sasine— Erasure— Freehold QuaJificalion.—Ke\& in a question relative to a free-
hold qualification, that part of the name of one of the parcels of lands enumer-
ated in the sasine founded on having been written in all the material parts on
erasures, the sasine was * null and void.'
Bt a Crown charter of resignation, dated the 2d, and sealed Mar. 10. 1897.
the 6th of June 1825, in favour of Mrs. Rose Innes, there were f vlVmov.
conveyed to her ' totas et integras terras dominicales et maneriei ^^ Meadow.
* locum de Netherdale, molendinum et terras molendinarias ea- bank*
4 rundem, cum multuris, sequelis, lie sucken et knaveships ad eas-
* dem spectan., villam et terras de Husbandtown de Netherdale,
* Craignethertie, Chapeltown, Millhill, Windyedge, et Coble-
' croft,' Sec. ; and which lands, it was stated, * nunc sunt divisse
* in duas portiones lie lots, consisten. cognitse, et sub nominibus
* et descriptione sequen. appellate, viz. Portio prima de Wester
vol. v. 2 N
560 CASES DECIDED IN THE
( Craignethertie, sicuti in pnesenti per Joannem Walker poesessa ;
< Oldtown seu Husbandtown de Netherdale, et parte de Coble-
' house, per Alexandrum Roberts, Coblehouse et cymba ejusdem,
4 per Joannem Courage, Harperhill et Broadgate, et parte de
4 Oldtown de Netherdale, per Alexandrum Sim, Chapeltown, per
' Jacobum Irvine, North Millhill, per Gulielmum et Georgium
' Watts, Wittiefoot, per Jacobum Peters, et domo, See. super
' Millhill, per Isabellam Thomson ; et portio secunda earundum
1 de prsedio et molendino de Netherdale et Windyedge/ &c A
clause of dispensation was granted for taking infeftment at parti-
cular places pointed out.
On the 9th of June Mrs. Innes executed a disposition and as-
signation in favour of her son, the complainer, of ' all and whole
' those parts and portions of the lands and estate of Netherdale
' comprehended under the first lot thereof, consisting of dnd now
' known by the following names and descriptions, viz. the town
' and lands of Craignethertie, as presently possessed by John
' Walker,' &c. ; and she also assigned to him the unexecuted pre-
cept of sasine in the charter, so far as related to these lands. In
virtue of that precept, sasine was taken in his favour on the same
day ; and in the instrument it was stated, that by the disposition
his mother had conveyed to him ( totas et integras illas partes
' praedictarum terrarum et haereditatis de Netherdale comprehen-
' sas sub prima portione lie lot earundem, consistentes et nunc
' cognitas, et sub nominibus et descriptionibus sequentibus agen-
< tes ; videlicet, Villain et terras de Wester Craignethertie, sicuti
' in prsesenti per Joannem Walker possessam, villam et terras de
' Oldtown seu Husbandtown de Netherdale, et parte de Coble-
' house, per Andream Roberts, Coblehouse et cymbam ejusdem,
* per Joannem Courage/ &c. ; and also that the bailie at one
of the appointed places, ' virtute diets? cartae et praecepti sasuuc,
' et clausula dispensationis inibi content., et officii per idem tain
* commissi, dedit, tradidit, pari tenjue deli veravit, statum et sashi-
' am hsereditariam, atque possessionem realem, actualem et cor-
* poralem, totarum et integrarum illarum partium et portionum
' de praedictis terris et haereditate de Netherdale, componen. pri-
* mam portionem lie lot earundem, et consisten. ex particularibus
« villis et terris de Wester Craignethertie, Oldtown seu Husband-
' town de Netherdale, Coblehouse, et cymba ejusdem,'' &c The
clause of dispensation was not engrossed in the sasine, but was
held as repeated ; and it appeared that the instrument was
erased in all the material parts of it on which the word * bouse/
forming part of that of ' Coblehouse/ was written. The va-
lued rent of the lands so conveyed was j£401:6: 7/V Scots;
COURT OF SESSION. 561
but without Coblehouse they did not afford a freehold qualifica-
tion.
Founding on these titles, and a certificate of valuation, the
oomplainer claimed to be enrolled as a freeholder of the county
of Banff, at the meeting held on the 29th June 1806, for the elec-
tion of a representative. Against this claim it was objected by
Lord Fife, ' That among other lands on which the claimant de-
' mands enrolment, are ' the town and lands of Old town or Hus-
" bandtown of Netherdale, and part of Coblehouse, (possessed)
" by Andrew Roberts ; Coblehouse, and boat thereof, by John
" Courage ;' but, from essential vitiations and erasures in the in-
* strument of sasine produced, there is no legal evidence that sa-
' sine of the said lands of Coblehouse, or any part thereof, has
' ever been delivered to the claimant, or that he stands at this mo-
* ment infeft therein. The objection equally strikes against the
* qualification of the claimant in point of extent of valuation, in
4 as much as there is no evidence that, without the said lands of
' Coblehouse, he is possessed of «£400 Scots of valuation. Fur-
c ther, that the sasine is in various particulars disconform to its
' warrants, and, inter alia, infeftment is given on the town and
* lands of Wester Craignethertie, whereas the disposition and as-
( agnation claimed on convey right to the town and lands of
' Craignethertie. There are other essential discrepancies, but it
' is needless at present to particularize them further, as the first
' of the objections above stated is-necessarily fatal, no part of a
* title being more in substantialibus than the description of the
* subject.1
To which it was answered for the claimant, * That the erasure
6 or vitiation is not in substantialibus. There can be no dispute
' that sasine was given of all the lands contained in the convey-
* ance. Further, the charter and the conveyance, and the instru-
* ment of sasine, comprehend generally all the lands contained in
' lot first of the estate of Netherdale, as ascertained by the decreet
* of division of the Commissioners of Supply, and therefore any
* enumeration of particulars was superfluous ; while that decreet
* proves, at the same time, that the valuation of the lands con-
c tained in lot first exceeds i?400 Scots. The charter in favour
c of Mrs. Rose Innes refers to a division of the valued rent of the
' estate of Netherdale, and it describes particularly certain lands
' as being comprehended under the first lot, and certain other
4 lands as being comprehended in lot second \ and the disposition
* by Mrs. Rose Innes, after conveying certain lands by name,
' gives to the claimant all the lands comprehended in lot first,
' under whatever other names the same may go, and the sasine is
2 n 2
562 CASES DECIDED JN THE
« in exact conformity to that general description. Further, the
1 lands of Craignethertie are sufficiently described, first, as being
< parts of the estate of Netherdale, — and, secondly, as being pos-
' sessed by John Walker.'
A majority of the freeholders having sustained the objection,
Mr. Innes presented a petition and complaint, which, after bang
remitted for preparation to the Lord Ordinary, was reported by
his Lordship ; and the Court being of opinion that the whole case
turned on the effect of the erasures, and that, from the state of
the decisions, it was of importance to take the opinions of the
whole Judges, they appointed a query to be laid before them in
relation to that point ; and on advising these opinions, their Lord-
ships, c in respect of the erasures in the instrument of sa&iae
* founded on by the complainer, found the same null and void,1
dismissed the complaint, and found him liable in the statutory
penalty, and full expenses of process.
Lords Justice-Clerk, Glenlee, Pitmilly, Alloway, Mea-
dowbank, Corehouse, and Newton, delivered this opinion:—
Having considered the Cases in the complaint of J. Rose Innes, Esq.
and answers for the Earl of Fife, we are of opinion, in answer to the
question submitted to us by the Lords of the First Division, that the
erasures in the different passages of the sasine in favour of tbe com-
plainer, as to the latter part of the word Coblebouse, vitiate the sa-
sine, and render it null and void. ,
Lords President, Craigie, Balgray, and Gillies, without deli-
vering tbeir opinions at length, concurred in the above.
Lord Cringletie delivered this opinion : — I am humbly of opinion
* that the erasures in the sasine of the last part of the word ' Coble-
* house/ viz; ' house,' is of no importance, and does not injure the
sasine.
It must be admitted, that an erasure of the paper or parchment os
which parts of any deed or instrument are written is of no importance,
provided it be proved by proper evidence what is the true word that
ought to be on that erasure. Proper evidence may be of different
descriptions. If the erasure be mentioned in- the attesting clause of
a deed, as having been done before execution — if the word written
on the erasure be repeated in other parts of the deed, and written
where there has been no erasure — if there be duplicates of the
deed bearing relation to it, and having the same words written on
no erasure, all these" authenticate tbe truth of the word written on
an erasure. Thus, take the instance of a bond for borrowed money.
It begins with owning tbe receipt of money, and proceeds, — * which
' sum I oblige me to repay.' Suppose one of these sums to be erased,
and the other not, the one without erasure would prove the authen-
ticity of the other. Take a lease bearing to be subscribed and exe-
COURT OF SESSION. 563
cnted in duplicates, the one referring to the other, a word or words
written on an erasure in the one would be supported by the same
words in the other, being written where there was no erasure.
Now, infeftment is investiture, and is not constituted by an instru-
ment of sasine alone. Sasine is no more than a part of the investi-
ture. By itself alone it is not the foundation of prescription, except
in the case of consecutive sasines in favour of heirs by services or
precepts of dare constat. To constitute a title for prescription, there
must be charter and sasine thereon, both of which constitute the in-
vestiture or infeftment. Craig, (Lib. ii. Dig. 2. § 18,) after men-
tioning that both constitute investiture or infeftment, adds, ' Cbarta
' enim per se non videtur actus perfectus, cum ejus robur et effectus
* adhuc pendeai, donee sasina sequatur ; neque sasina per se investi- '
' turn dici potest, cum neque modum tenendi, neque pro quibus ser-
' vitiis (qua) in omni investitura necessaria exprimenda ante diximus)
' exprimat. Et licet haec a notario aliquando inserantur, non tamen
4 notario de his referenti eredendum, nisi etiam cbarta adsit ; ini-
' quum enim esset alii quam domino qui disposuerat de conditioni-
( bus investitive credi.' The same must be applicable to the lands
in the sasine.
The charter and sasine, therefore, bear reference to each other,
and constitute one infeftment or investiture ; and consequently, if
there be any doubt or difficulty about any subject or condition in the
sasine, reference must be had to the charter, which will entirely re-
move it. And if we look to the charter and disposition in this case,
the difficulty will be removed, that Coblehouse is the subject thereby
conveyed.
But it may be said, this may be true ; but how do we ascertain
that the notary gave sasine of Coblehouse ? Some other word may
have been inserted there when he executed the instrument. I an-
swer no. That is not in reason to be presumed. 1st, The word
Coblehouse occurs in that part of the sasine which describes the char-
ter, also in the conveyance to Mr. limes by his mother ; and it is
distinctly written in both places on parchment no way erased. 2d,
The charter, of the identity of which there is no dispute, contains
Coblehouse distinctly ; and when we see sasine taken, it is, in my
opinion, no more than reasonable to believe that the notary did at-
test that sasine was given of the intended subject ; and this is put
beyond doubt, when he adds, that sasine was given of the lands
specified, — * cum pendiculis et pertinentiis earundem, supra et in
( dicta carta, et dispositione et assignatione magis particulariter sped-
1 ficatis et descriptis.' If he did not give sasine of Coblehouse, he did
not give it in terms of the charter and disposition. Yet be asserts
that he gave sasine in terms of these deeds. There is a direct re-
ference to the charter, which he was entitled to make, and thereby
renders it a part of the sasine.
I shall only further suppose that in the charter the word Coble-
564 CASES DECIDED IN THE
house had been written on an erasure— and in that case the free-
holders might, with equal justice, hare stated that it did not thence
appear whether the Crown had given Coblehouse or not ; but I am
of opinion that no such objection would have been competent to the
freeholders, when neither the Crown nor any other person claimed the
subject. For the same reason, I doubt their right to object to the
sasine on an unquestionable charter. I think that there is a* differ-
ence between private writings and public instruments; and it is,
that the former must support themselves, whereas, in the latter, re-
ference may be had to the record, and to the warrants of them. If
the word Coblehouse had been written on an erasure in the charter,
which had been objected to on that account, I think that it might
be supported by the signature on which the charter passed, and the
prior investiture ; and in the same way I think that in this case .
the charter and sasine forming but one investiture, the former sup-
ports the latter.
Lord Eldin subjoined to this opinion i — On considering the within,
I do not find any objection to it.
Respondent's Authorities.— Balfour, 371 ; 1. Ross, 145 ; 4. Stair, 42. 19 ; 3. Erek.
2.20; Earl of Bute, July 17- 1712, (11545); Patullo, Nov. 27. 1671,(11538);
1. Bank. 11. 34.
J. Morrison, W.S. — Inolis and Weir, W. S.~Agenta»
No. 286. Mrs. Kirk and Others.— Baird.
Factor toco Tutoris .— Circumstances in which an interim factor loco tutoris was
appointed to act during the currency of the usual intimation on the walla.
Mar. 10. 1827. David Ramsay, shipowner and coal-merchant in Perth, having
D died intestate, leaving a daughter Margaret, who was only nine
H * years of age, without guardians, and possessed of considerable
property, both of an heritable and moveable nature, requiring im-
mediate superintendence, the nearest of kin on both sides applied
to the Court for the appointment of Mr. John Matthew as factor
loco tutoris, and praying that, in respect of the urgency of the
case, he should be authorized to act as interim factor during the
time necessary for the usual intimation on the walls. The Court
ordered intimation, * and in the mean time nominated and ap-
' pointed the said John Matthew within mentioned to be factor
' loco tutoris ad interim to the said Margaret Ramsay, with the
' usual powers/ &c.
Ker and Dickson, W. S. Agents.
COURT OF SESSION. 665
J. Kirxpatbick, Pursuer. — T. Grahame. No. 287.
R. Theeshie, Defender. — Cockburn — Gillies.
Cessio Bonorum.— Warrant granted, without caution, for liberation of a debtor in-
carcerated in a provincial jail, who had obtained judgment awarding the benefit
of cento, but whose oath could not be reported before the rising of the Court, in
consequence of the roads being blocked up with snow.
On the 8th of March the Court granted the benefit of cessio Mar. 10. 1827.
to the pursuer Kirkpatrick, after considerable opposition on the 2d DlvlBI
part of Threshie, as treasurer for the trustees of the Dumfries M'K.
turnpike road, of one of whose tolls he had been tacksman ; but in
consequence of the roads between Edinburgh, and Dumfries
where Kirkpatrick was incarcerated, being blocked up with snow,
the report of bis oath could not be obtained ; and this being the
last day of Session, a petition was presented in his name, setting
forth this circumstance, that he was at present alimented under
the Act of Grace, and that his family were supported by the par-
ish, and praying warrant of liberation. The Court granted war-
rant accordingly, without requiring him to find caution to return
to jail, as had been the practice, when it was competent to reclaim
against a judgment granting the benefit of cessio.
W. Martin, — D. S. Threshie, W. 8. — Agents.
G. Saunjjeas, Petitioner. — Greenshields — Skene. No. 288.
Renfrewshire Banking Company, Respondents. — 2). of F.
Moncreiff—Ruiherfurd — A* Dunlopjun.
Bankrupt— Stat* 54. Geo. 111. e, 137 '.— Composition Contract.-— A sequestrated
bankrupt having been discharged on a composition by a judgment declaring him
discharged 'upon' payment of the composition, and having been sequestrated
a second time, when a part only of the composition had been paid— Held,—
1.— That the discharge must be interpreted as if it had been in terms of the
Bankrupt Statute, ' except as to payment of the composition;'— and,— 2. —
That under the statute the debts of creditors under the first sequestration were
extinguished except the composition, and did not revive by the failure to pay
the composition, but could rank in the second only for the balance of the com-
position remaining unpaid.
The estates of Ronald M'Niool, merchant in Glasgow* having Mar. lo. 1827.
been sequestrated in July 1819, he offered his creditors a compo- 2d d
sition of 6s. in the pound, payable by three instalments, for which Lord Eldin."
he granted bond, along with four persons as cautioners. This M'K.
composition was accepted by the creditors, and approved of by the
Court, who pronounced an interlocutor thereupon, finding * the
* said Ronald M'Nicol discharged of all debts contracted prior to
666 GASES DECIDED IN THE
« the 17th of July last, upon payment of the composition, in terms
* of the bond/ IVTNicol was accordingly reinvested in his estate;
but, after paying a part only of the composition, he was a second
time sequestrated, all the cautioners for payment of the compo-
sition having also become bankrupt. In this second sequestration,
the Renfrewshire Banking Company (who had been creditors
under the former sequestration, and had only received payment
of 2s. 3d. of the composition,) claimed to be ranked for their ori-
ginal debt, under deduction of the amount received as part of
the composition. Saunders, the trustee, refused to allow the
claim, and presented a petition tp the Court, praying to have it
found that the Bank was ' entitled to be ranked on the bankrupt
' estate only for the balance of the composition still due to them.4
This petition having been remitted to Lord Eldin, (then junior
Lord Ordinary,) the Bank, in support of their claim, contended,
1. That the object of the Bankrupt Statute was to render the
common extrajudicial composition contract imperative on the
whole creditors, if consented to by a majority; and as such
a contract had always been construed to be a conditional dis-
charge, dependent on the performance by the bankrupt of his
part of the obligation, in which if he failed, the original debt ne-
cessarily revived, so the same rule must apply to a composition
contract under the statute.
2. That this is also the true construction of the words of the
statute, which declares that, on approving of the composition, the
Court shall pronounce an order declaring thebankrupt « discharged,
* except as to payment of the composition/ which is in reality a
condition of the discharge ; or at all events it clearly means
that, to the effect of enabling the creditor to obtain payment of
the composition, the bankrupt is not discharged, so that it must
always be competent to rank for the full debt, in order to draw at
least the composition ; and that the construction put on it by the
trustee, viz. that all the debts are discharged, with the exception
of the composition, would, render the clause mere surplusage* as
the general discharge of*feU debts prior to the sequestration could
never include the composition, which not only is contracted
after the sequestration, bub is the substitute in consideration of
which the discharge is granted, and so would not need to be
excepted, if nothing more was meant than to declare that it should
not be discharged ; and,
S. That, in the present case, the act or order of the Court
having merely discharged the bankrupt ' upon payment of the
1 composition/ agreeably to the form invariably followed since
the passing of the statute, this discharge* which is purely ooodi-
COURT OF SESSION. 667
tional, must be the law of the case, although it should be held
that it ought to have been pronounced in the very terms of the
act of Parliament.
On the other hand, it was pleaded for the trustee,
1. That the composition authorized by the statute is not at all
of the nature of the extrajudicial composition contract, but 'ut
a sale of the universitas of the estate to the bankrupt him-
self; and, at all events, that the words of the statute must be the
only rule for determining questions regarding such compositions.
» £. That the words of the statute plainly mean that all debts
are to be discharged, except the composition, and that no weight
can be attached to the argument rested on the supposed sur-
plusage, which is so common in all acts of Parliament ; and,
3. That as the statute declares that an act or order * shall1 be
pronounced in the terms therein mentioned, the Court had no
power to pronounce an order in other terms, and that those used
must therefore be construed in conformity with the statute.
The Lord Ordinary, on the 25th of November 1823, found
' that the terms of the decree approving of the composition offered
' by the bankrupt, Ronald M'Nicol, under the first sequestration,
c by which he was discharged of all debts contracted prior to the
' 17th of July 1819, * upon1 payment of the composition, must
* be interpreted according to the terms of the act of Parliament,
( whereby it is enacted that the bankrupt shall be discharged,
" except as to payment of the composition f— that, upon general
* principles of legal construction, the words in the statute neces-
' sarily mean that the bankrupt is discharged of his debts, with
* the exception of the composition, which makes the composition
c the only debt due by him to his creditors ; and therefore that
' under the second sequestration of .Ronald M'Nicol the bank-
* ropt's estate, the Renfrewshire Banking Company are entitled
* to be ranked on the bankrupt's estate only for the balance of the
( composition still due to them ;' and decerned accordingly. His
Lordship observed in a note, — * In the arguments of the respond-*
' ents there is a quotation from the excellent work of Mr. Bell ;
' but the Lord Ordinary thinks that some mistake must have
* crept into the passage.9
The Bank then reclaimed ; and the Court, being very much
divided, consulted the Judges of the First Division, who returned
the following unanimous opinion :—
* We are of opinion that the interlocutor in this case ought to
' be altered, and that the creditors whose compositions were not
' paid under the originaf composition contract, are entitled to
c rank in the second sequestration for their full debt, or for the
* balance which may remain due thereon.
568
CASES DECIDED IN THE
'We are of opinion that the clause of the Bankrupt Act
founded on cannot, on a sound construction, be held to give to
the statutory discharge under a composition contract a stronger
effect than a discharge has under a voluntary and extrajudicial
composition contract; which discharge, however general and
absolute in words, is certainly qualified by the condition, that
the composition shall be paid as stipulated by the contract.
4 We are the more clearly of this opinion, because, in composi-
tion contracts under a sequestration, the composition may be,
and often is, forced upon a certain number of creditors in num-
ber and value against their consent Now, it would be mon-
strous injustice first to force a man to accept of a composition
which he considers to be inadequate, and then to force him still
further to continue bound by this contract, although violated by
the debtor. Our opinion, too, is confirmed by the analogy of
other discharges under circumstances nearly similar ; — e» g. If a
person in payment of a tradesman's account indorses to him a
bill, and the tradesman grants a discharge, it has been found
that such discharge is nevertheless qualified with the condition
that the bill shall be paid, and all that the tradesman under-
takes is to negotiate the bill properly ; but that if he does so,
and the bill is not paid, he has a right to come back on his
debtor on his open account, notwithstanding the apparent abso-
lute terms of his discharge.
4 We do not agree with the Lord Ordinary that there is, or
can be, any mistake in the passage quoted from Mr. Bell's
Work, Vol. II. p. 499 ; for that passage is not founded on his
own opinion merely, but on the practice and understanding of
the Court, and of the profession, ever since the act was passed,
as proved by the uniform style of the interlocutor approving of
composition contracts, and discharging the bankrupt only * upon
payment of the composition*'
* We must presume that the clerks would not have adopted this
style, varying in words, though not in sound construction, from
the terms of the act of Parliament, without the authority of the
Court. At any rate, as many cases have occurred »ii™lyi» to
the present, the practice has interpreted the statute; for that
style of interlocutor would have been long ago cheeked and al-
tered, if it had not been held to have been authorised by the
Court, and agreeable to the spirit of the statute.
' And further, we observe from Mr. Bell's work, that the
doctrine which he lays down, and the opinion which we now
give, is in conformity with the doctrine of the. law of England
in regard to discharges on composition contracts.'
Notwithstanding this opinion, the majority df the Second Di-
COURT OF SESSION. 569
vision, holding the Lord Ordinary's construction to be the cor-
rect one, and it not being then imperative to give judgment ac-
cording to the opinion of the majority of the whole Judges, in-
cluding those consulted, their Lordships adhered. But the Bank
having presented a reclaiming petition, and the late Judicature
Act, introducing this regulation, having immediately afterwards
passed, they prayed the Court now to alter the interlocutor,
agreeably to the opinion of the majority of the whole Judges.
This having been objected to, on the ground that the act could
only apply to cases where the consultation had taken place sub-
sequently to its being passed, the Court again required the
opinion of the Judges of the First Division, and also of the per-
manent Lords Ordinary, and for that purpose appointed one
counsel on each side to be heard before the whole Court. This
was accordingly done, and the consulted Judges thereupon re-
turned an unanimous opinion, opposite to the former one, and
in the following terms :— * We are of opinion that the interlocutor
< of Lord Eldin, of 86th November 188S> ought to be adhered
* to, on the grounds there stated.9
In conformity with this opinion, the Court again adhered.
Respondents' Authorities.—*. Bell, 499, and Cases there recited, 501, 598; Paul,
Dec 19. 1820, (F. C.) ; Leigh v. Barry, (3. Atkins, 383) ; Crawley v. Killary,
(3. Maule and Sel. ISO.)
Grkig and Pkddm, W. S. — A. Pbabson, W. S. — Agents.
Dr. Hamilton, Pursuer. — D. qfF. Moncrebff— Jeffrey — No. 289.
Cockburn.
Dr. Hope, Defender.— tfoJ.-Gen. Hope — Skene.
Privileged Slander. — SJanderous words spoken at a regular meeting of the Senatua
Academicus of an University by one Professor of another, in reference to a
matter falling within the cognisance of the Senatus, entitled to the benefit of
privilege, without proof being led as to the constitution or jurisdiction of the
Senatus.
Iu an action of damages at the instance of Dr. Hamilton, Pro- Mar. 10. 1827.
fessor of Midwifery in the University of Edinburgh, against Dr. 2d DmiI0H#
Hope, Professor of Chemistry in the same University, for cer- jury Court.
tain defamatory words alleged to have been spoken by the latter *•
at a meeting of the Senatus Academicus, the pursuer took the
following issue :— * Whether, on or about the 88d day of April
< 1885, at a meeting of the Senatus of the said University, and in
' presence and in hearing of the Professors then and there pre-
< sent, the defender did falsely, maliciously, and calumnkmsly
570 CASES DECIDED IN THE
' impute intended falsehood to the pursuer, by stating that the
' pursuer was a liar, or a malicious and impudent liar; or that he,
' the pursuer, not only lied, but knew that he did so ; or did use
( or utter words to that effect, to the injury and damage of the
6 pursuer.'
The defender also, having put in a plea of justification, took two
issues, as to whether certain statements regarding the mode of
teaching in the Medical Faculty of the University were contained
in a memorial presented by the pursuer to the Magistrates of
Edinburgh, as Patrons of the University : — * And whether the
4 whole or any part of the averments aforesaid, contained in the
* memorial aforesaid, were known to the said pursuer to be false at
* the time he presented the said memorial to the said Magistrates.'
These issues having gone to trial before a Jury, a verdict was
found for the pursuer on all of them, with £500 of damages ; but
the defender, having taken an exception to the charge of the
Lord Chief Commissioner, tendered a bill of exceptions, which
set forth, That it had been given in evidence on the trial, that in
January 1824 the pursuer had presented to the Magistrates of
Edinburgh, as Patrons of the University, a petition, praying to
have the class of Midwifery added to the curriculum of study
necessary to qualify medical students for a degree, accompanied
by a printed memorial, which the pursuer circulated among the
Professors, and which contained various statements as to the
mode of teaching adopted in the several classes composing the
Medical Faculty, and animadversions thereon, and stating, par-
ticularly in regard to the class taught by the defender, that
Pharmacy (which it was the defenders province to teach along
with Chemistry) was not taught by the defender : That a second
memorial, with additional statements to the same purport, was
presented by Dr. Hamilton to the Patrons on the 13th of De-
cember 1824, and that these memorials were transmitted by the
Patrons to the Senatus : That a committee of the Senatus was
appointed to report on the pursuer's statements in his petition
and memorials : That they drew up a report accordingly, for
the purpose of taking which, into consideration, a regular meet-
ing of the Senatus was summoned for the 23d of April 1825:
That a meeting was accordingly held, at which the defender was
present, but which was not attended by the pursuer : That, at
this meeting, the defender having moved that the report of the*
committee be approved of, an amendment was proposed and se-
conded, with a view to waive any discussion on the report, where-
upon the defender rose and spoke at some length in support of
his own motion, and with reference to Dr. Hamilton's statements
COUHT OF SESSION. 571
in his memorial regarding the mode of instruction followed in
the medical classes ; and that, with reference to certain of these
statements, and particularly those relating to his own class, he
used the words, * He lies, and he knows that he lies,' applying
these words (being a quotation from Dr. Johnson) to the pur-
suer : That this meeting was adjourned ; and that, at a subset
quent meeting, the Senatus adopted certain resolutions expressive
of their opinion that the conduct of Dr. Hamilton had been
' highly reprehensible' in various particulars connected with this
matter.
The bill further set forth, that the Lord Chief Commissioner,
after stating to the Jury that the words ' liar, malicious and im-
' pudent liar,'1, were not proved, but the other alternative, that
the defender had imputed falsehood to. the pursuer, by stating
that he lied, and knew that he lied, mufet be considered by them,
the Jury ; and it proceeded to set forth the remainder of the charge
as follows :-r-c And the said learned Judge did observe to the said
4 Jury, that the defender, making use of these expressions as a
' quotation from Dr. Johnson, did not prevent the consideration
' of whether they were slanderous or libellous, as that depended
4 on the intention with which they were spoken ; and the said
4 learned Judge did observe to the Jury, that the first question
4 for their consideration was, whether the words were libellous—*
4 that is, whether the words given in evidence as having been used
4 are actionable according to the law of Scotland. The said learned
4 Judge then gave it as his direction in matter of law to the said
4 Jury, that the doctrine of the law of Scotland was, that when
4 the moral character of an individual was brought into question,
4 and the harassing of the mind is the effect of words spoken,
4 such words are actionable; and, in this sense, words importing
4 intentional falsehood are libellous, and the offence is proved, if
4 the words flowed from a malicious intention in the speaker.
4 The said learned Judge then directed the said Jury, that the
4 summons and issues in this case stated the words to be mali-
4 ciously used : That the rule in ordinary cases was to aver only that
6 such words were falsely used. But if it was a protected case,
4 then the words maliciously, as well as falsely, were required to
' sustain the 'action; and accordingly the word maliciously was
* inserted in the issue, on which two observations arose: 1. Was
4 this a privileged discussion in a protected place ? 2. If not a
* protected place, it was sufficient that the Jury were satisfied of
* the malice which the falsehood implied. The learned Judge
4 then stated, that there was no evidence of the constitution of the
* Senatus Aoademicus ; that nothing was proved to establish pro-*
57* CASES DECIDED IN THE
' tectum ; and that as to malice, if that could be made oat, it was
' for the Jury, who were to take it in two points of view ; 1. At
' to extrinsic evidence of malice ; 2. Intrinsic, or malice arising out
* of the facts and circumstances of the case, and out of the char*
c acter and nature of the words proved. As to the first, the learned
' Judge observed to the said Jury, that there was no evidence
* given of extrinsic malice. As to the second, it was a question
* for the said Jury, on the whole proof, to consider with what ani*
c mus Dr. Hope spoke the words, and whether they were tnali-
' ciously said. The said learned Judge could not state it to the
' said Jury that this was a protected place. The words used were
c not protected by the place where they were spoken. It was
' therefore for the consideration of the said Jury, whether the
c words used by Dr. Hope, if they were said falsely of Dr. Ha*
* milton, were also said maliciously, although there was no ex-
' trinsic evidence of malice. And, with that direction, the said
' learned Judge left the same to the said Jury/
The bill then-stated, that thereupon c the said counsel for the
' said defender did then and there, on behalf of the said defender,
* except to the foresaid direction of the said Lord Chief Commis-
* sioner, and did insist that he ought to have directed the Jury
( to find a verdict for the said defender, on the ground that the
' discussion at the meeting of the Senatus Academicus, on the
* &3d of April 1825, was a privileged discussion, in which the de-
* fender was entitled to take part, and that the defender had con-
' fined himself to the proper subject-matter of that discussion ;
* that the expressions then and there used by the defender re-
* ferred solely to the representations laid by the pursuer before
' the Patrons of the University, as to the manner in which the[de-
' fender and certain of his colleagues discharged their professional
* duty ; which representations were contained in the foresaid peti-
* tion and memorials, which were then regularly under discussion
* in the Senatus Academicus ; and likewise on the ground that
' there was no distinct proof of express malice in fact given in
' evidence to make out a case of malicious libel/
This bill having been presented to the Second Division of the
Court of Session by the Lord Chief Commissioner, counsel were
heard in terms of the statute.
Solicitor-General Hope and Skene in support of the bill.— The
general plea which the defender maintains is, that this is a case
entitled by law to privilege, and that there ought to have been a
direction by the Judge to that effect, and that, on the facts, there
was nothing to take from the case the benefit of protection. The
argument in support of this plea may be divided into four heads.
COUBT OF SESSION. 679
1* In regard to the general principles applicable to cases of
this description^ Slander may be divided into three classes :— *
(1.) Those in which the presumption of malice is against the de-
fender, and inferred merely from the words used, as in cases of
ordinary slander. (8.) Those in which the presumption of malice is
entirely excluded, as in regard to words spoken in Parliament ;
and, (3.) Those in which the occasion of speaking, and the charac-
ter and situation of the speaker, protect the use of actionable
words, so far as to rebut the presumption of malice, allowing it,
however, to be proved aliunde. In regard to the two Ufet cases,
the principle is the same, viz. that the use of actionable words is
protected by the occasion, with this difference, that in the one,
proof of malice is allowed, while in the other it is excluded. The
leading principle of privilege is this, that there exists a legitimate
occasion or call on a party to express his opinion on the matter in
question. In such a case, the law never presumes an injurious
or malicious motive, however strong the expressions may be. The
presumption of malice in other cases is founded on this, that there
is no occasion nor call to express an opinion ; and that the doing
so presumes an intention to defame, as there is no other fair motive
to which it can be referred. But a malicious motive cannot be
presumed when the party is in the discharge of a duty, if he be
not guilty of inventions in point of fact, but merely express an
opinion when be is entitled to do so. This principle applies to
the case of all persons in situations of public trust, and the Sena-
tes Academicus of an University affords an instance where the
principle also applies. The right of discussion in any legally con-
stituted body gives privilege in a greater or less degree ; and if
there be privilege, excess in the language employed in a privileged
case cannot take it out of the privilege, if the words relate to the
subject under discussion, and are the expression of matter of opi-
nion, and not the fabrication of facts. In the present case there
is confessedly no extrinsic proof of malice, and there is not a case
on record, where, in regard to privileged slander, action has been
sustained on mere excess in the words used,— extrinsic proof of
malice being always held to be necessary. This may be clearly
seen to be established by reference to Starkieon Evidence, Vol. II.
p. 862-9, 902, &c, and the cases there mentioned ; while the ex-
pression of some of the English writers, that the prima facie pre-
sumption is in favour of malice, is easily explained by the circum-
stance of the issue in the English Courts going at once before the
Jury on the general averment of the plaintiff, without the nature
of the defence, or the occasion when the words were spokfen being
known beforehand, as is the case according to our forms.
.\
574 CASES DECIDED IN THE
2. In regard to the effect due to the form of the' issues id this
case. The form of the issues is settled with reference to the above
general principles, and under the issues in this case the defender
was entitled to a direction conclusive in his favour. The occasion
on which the words were spoken being a matter admitted, the
form of the issues taken is very important. At framing the issues,
reference is always had to their effect. In cases of ordinary slan-
der, the issue sent to the Jury is, whether the words have been
si&kenfalsely and injuriously ; but it is not put that they have
Jbeen used maliciously, because in these cases the law infers malice.
But, in privileged cases, the privilege appearing from the plead-
ings, the issues then lay on the pursuer the burden of proving
malice* and put it; to the Jury whether the words were used ma-
liciously, as well *& falsely and injuriously'; and when that is the
form of the issue, malice must be established .by proof, and can-
not be inferred from the words. The defender is bound, at
settling the issues, to raise the question of law, whether the case
is privileged, and whether malice must be proved ; and accord-
ingly, by the issues as here settled, the privilege was allowed, and
the burden of proving malice laid on the pursuer'; but the charge
nevertheless disallows the privilege which the issues give right to.
The privilege is not exhausted by the mere insertion of the word
( maliciously' in the issues, and requiring {he Jury to answer
whether there has been malice. The question to them, in a pri-
vileged case, is whether malice be proved extrinsically ; and the
pursuer must establish malice, as put in issue, independently of
the words spoken ; and under this issue, therefore, in respect of
its construction, which necessarily admits and implies privilege,
there ought to have been a direction in favour of the defender,
that there must be extrinsic evidence of malice to warrant a ver-
dict for the pursuer.
3. The facts given in evidence establish a case of privilege,
even if not given by the form of the issue. These facts must be
taken from the statement in the bill alone, and the verdict cannot
be looked to as fixing any thing in fact ; because the question is,
whether the direction on, which the verdict proceeded was a good
.direction on the facts as stated in the bill; for, if the direction be
bad, the verdict is cut down. This Court, therefore, must look
at the evidence as there set forth, and judge whether, there being
xu> extrinsic evidence of malice, the charge was right in saying
that the Jury were to consider whether the words were used mali-
ciously. The result of the evidence is, that the words founded on
were used at a meeting of the Senatus Academicus, regularly sum-
moned mid convened : — that the pursuer and defender are both
COURT OF SESSION. 575
members of that body : — that the subject-matter before them was
the pursuer's charges in regard to the medical classes : — that the
meeting was called to consider of this : — and that the defender's
observations were strictly confined to the subject under discus-
sion. The principles of the law of privilege distinctly apply to,
and include such a case as this. Whether the Senatus had truly
a jurisdiction in regard to the matter before them, it is at least
clear that they and the defender believed that they possessed
such jurisdiction ; and it ought therefore to have been put to the
Jury, in the charge excepted against, that the privilege was equally
good, if they believed they had jurisdiction, as if they really had
it. The charge, however, does not state the case as privileged,
or say that malice must be proved ; but merely, that, to sustain the
action, it was necessary to insert the word * maliciously1 In the
issues ; and that whether there is intrinsic evidence of malice, is a
question for the Jury. The Judge also says, that he could not
state that the place where the words were spoken was a protected
place, or that the words used were protected by the place ; and
therefore that it was for the consideration of die Jury whether
they were maliciously said, although there was no extrinsic evi-
dence of malice. The charge is thus erroneous in three particu-
lars : 1. In excluding privilege, and not saying that malice must be
proved extrinsically ; 8- In not having at least stated the privilege
in mitigation ; and, S. In not having directed the Jury, that if
they were satisfied the defender believed he had right to discuss
the subjects under consideration of the Senatus, he should have
the benefit of the privilege. The charge being thus erroneous
according to its plain meaning, and as it would be understood by
unlearned men, the defect cannot be cured by critical discussions
as to what meaning .may be extracted out of it, different from
what would strike a Jury of ordinary men. If the Judge in-
tended to allow the privilege, it should have been so stated plainly
and distinctly; but, as the charge stands, the impression on the
Jury must have been, that the privilege was disallowed, while,
in point of law, the defender was entitled to the benefit of it.
4. In regard to the ground on which the privilege has been dis-
allowed. This is, that there was no ptoof of privilege led. The
form of the issue, as already adverted to, is a sufficient answer to
this. But further, the place where the words were used, and the
subject-matter of the discussion, were proved in evidence, and *
that was all which was necessary. The foundation was laid fn
the facts of (he case ; and it is a question of law, not of factn
whether the occasion, as coming out in evidence, protects the words..
It is maintained on the other side, that whether the place be
vol. v. * °
676 CASES DECIDED IN THE
privileged is matter for the Jury. We are here at issue; for we say1
that it is for the Court to determine. It is admitted on the other
side that it would not be necessary to lead evidence as to the
constitution of kirk-sessions or presbyteries, because they are
bodies known in law. But is not the Senatus Academicus of an
University equally known in law ? It is a legal body, having the
right to elect a member to the General Assembly, and entitled to
exercise certain powers in reference to the University. In the
case of Scarlett, it was found unnecessary to lead evidence of the
constitution of the Bar, to entitle it to privilege ; and the aame
wa* held as to Courts-martial in the case of Jekyll v. Sir John
Moore. Where the nature and constitution of the body is no-
torious, as is the case here, it is not necessary to lead evidence to
prove the privilege; but that must be judged of by the Court, and
stated to the Jury as matter of law ; and, in the whole circum-
stances of this case, it ought to have been stated to the Jury
that the words used were used in a privileged discussion, and in
a privileged place.
D. qfF. Moncreiffj Jeffrey, ond Cockburn in support of the
verdict.— -The question is, Whether the charge given to the Jury
is contrary to law ? The defender, who says-there has been mis*
direction in law, must make that out, not by taking single passages
of the charge, while he neglects the general substance, but on a
consideration of the plain meaning of the whole. There is con-
siderable difficulty in the present argument, from the circumstance
that it must be founded on the evidence, while we have not the
whole evidence before the Court.* Some things, however, may
be taken as fixed. The action is one of damages for slander,* the
summons in which libelled malice; and the pleas in defence against
it were, 1. Absolute protection; S. Denial of the words alleged to
have been used; and, 8. An offer to prove their truth in justifica-
tion. In reference to these, the issues were settled. The libel
charged malice, and the issue bore whether the words were spoken
maliciously. The verdict fixes that the words were spoken, and
the ground of exception has no reference to what were the words
spoken, or whether they were spoken truly or falsely. There is
nothing in the charge which can affect the verdict on these points,
or in so far as it negatives the defender's averment of the truth
of the words used. It is therefore definitively fixed that the words
were spoken, and spoken falsely. The Verdict also finds that they
• The Court stopped the counsel for the pursuer from alluding to evidence
said to have been laid before the Jury, but not contained in the bill, and refused to
listen to any statement of evidence other than that in the bill.
COUBT OF SESSION. 577
wefce maliciously spoken ; but we admit, that if the exertion be
well'founded, it applies to this last point ; and the charge must be
considered, if an objection will lie to the verdict on this point. The
result of the exception is, that the verdict would not have found
malice, if the Jury had been rightly directed in law. It is import*
ant, however, that there is no attempt to impeach the verdict as
contrary to the evidence ; and we may assume that the verdict can*
not in any form be reviewed as contrary to evidence. The question,
therefore, is confined to one of law. But, before entering into the
general argument, it will be proper to attend to certain preliminary
points. 1. A party tendering a bill of exceptions must except to
something said by the Judge ; not to the circumstance that some*
thing has been omitted to be said, in which case the remedy is by a
motion for a new trial, on the ground that the verdict is contrary
co evidence, which would be made out by showing the principle
of law, and that on the whole evidence the verdict should have
been different; and this strikes at a great deal of the argument
for the pursuer, in regard to alleged omission in the charge to
state that the case was privileged. 3. The party excepting is
bound to state in his bill the law which he insists the Judge should
have delivered; and it therefore follows that he must hold by the
law as inserted in his bill, and cannot alter or add to it, or ask
from the Court, law of a different kind, as the defender did in his
argument, when he maintained that the Judge should have told
the Jury, that if the defender believed he was in a privileged
discussion, that was sufficient, there being nothing of this kind in
the bilL 3. In stating what should have been charged by the
Judge, the party is only entitled to require law, not that there
should have been statements as to the result of the evidence. But
the charge, as required in the bill, relates chiefly to matter of evi-
dence, not of law, as when it requires the Judge to state that a
case of privilege has been proved ; and, 4. It is next to be attended
to, that that part excepted against is only, a small part of the
whole charge; and if it be interspersed with observations on ques-
tions of fact, these cannot be taken up, as we have not one-tenth
of the evidence before the Court in this bill It is therefore ab-
solutely necessary to separate the charge on matters of feet from
the direction on matters of law.
With these preliminary observations, we shall proceed to con-
rider the plea of privilege maintained by the defender ; and* in re-
gard to that, we have no occasion.to dispute the fundamental prin-
ciples laid down on the other side ; but it is necessary to distin-
guish between the case of absolute protection and that of privilege.
A judge has not mere privilege, but qn absolute protection* PjsU
2o2
BIB CASES DECIDED IN THE
»
'vilege is this, that there is something in the situation of the party,
looking to the words and circumstances, which presumes a fair
and just intention, whereby malice is not to be inferred merely
from the falsehood, but must be made out as a substantive fact
to the Jury. There are various shades of this privilege ; but when-
ever we pass judicial proceedings, the fact of privilege, except in
known settled legal situations, must be matter of fact to be given
in evidence. Even in the case of master and servant, it must be
matter of evidence whether the master has been acting entirely
in his character of master ; and in every case the whole circum-
stances must be matter of evidence, before it can be made out that
there is any privilege at all. There may be privilege in regard
to a Professor in an University censuring a student, and there may
be privilege attached to a Senatus enforcing discipline, though this
will depend on the constitution of the University ; or the Senatus
maypossiblypossess a privilege in exercising control over Professors
themselves; but this is not to be assumed as a matter of course.
The. power of enforcing discipline and control must be estab-
lished, before privilege can be maintained. No evidence, however,
was offered on this point. But, supposing that such a case of
privilege could be assumed as matter of fact from notoriety, it
must further appear that the party did speak under and within
the privilege ; and whether he did so or not, is matter of evi-
dence ; for it is not alleged that every thing that may be said at
a regular meeting is privileged ; and therefore it is a question of
evidence for the Jury, whether the words were spoken under pro-
tection of the privilege. It is admitted by the defender, that if
the words spoken are not pertinent — if there be invention of facts —
if spoken under colour and pretext merely, however pertinent,
there will be no protection. And there is another case in which
there is no protection, viz. if words are spoken, which, by natural
import and common sense, mean insult, without strengthening any
useful averment or discussion. Words so used do not imply, but
actually express, the malice which excludes privilege ; and there-
fore, whether words are protected by privilege, is always a ques-
tion of evidence for the Jury. The nature of the place— the cha-
racter of the body— the pertinency of the words— the bona fides
in applying them to the subject-matter before the meeting— all go
to the question of privilege, and are matter of evidence for the
Jury.
There is no difference between privileged cases and any other,
except that in the former malice must be proved, and that in the
latter it may be inferred from the falsehood of the words- The
• meaning of the rule as to privileged cases is, that the Jury must
COURT OF SESSION. 579
be satisfied of malice specially, independently of the usfr of Ac-
tionable words. The dicta as to extrinsic evidence of malice
merely mean that there must be malice, independent of the injurious
quality of the words ; hut, in judging of the malice, the nature of the
words is not to be thrown out of view. And this is of importance
in regard to the English cases, because in England malice must
always be matter of evidence, and privilege also, except in known
cases ; and bo, if we find it stated in an English case that it is privi-
leged, and yet see that the question of malice is left to the
Jury, although there be no extrinsic evidence of malice, it is clear
that the circumstances or words prove malice, without extrinsic
evidence at all. All the authorities (as, for instance, Starkie on
Libel, 2. 841, and on Evidence, & 863, 918. 8. 4.) go to the
point, that it is a question for the Jury, whether there be malice
or not, even in the strongest cases of privilege. The malice may
be inferred from the words and circumstances, and this is the pro-,
vince of the Jury. Nor is this inconsistent with the doctrine, that
in privileged cases there must be substantive proof of malice, a$
there may be real evidence of malice in the words and circum-
stances alone. So stands the law of England.
In Scotland, till the case of Williamson, there was scarcely an
instance of malice being libelled, as formerly it was always held
to be inferred, and the Court judged on the whole matter, giv-
ing effect to privilege, when established in the record before them.
In the case of Williamson, where it was settled that malice must be
libelled, there was no special condescendence of malice required,
and the case was sent to the Jury, without any extrinsic evi-
dence of malice ; and the same has been the case in the various
cases of privileged slander which have occurred since.
The presiding Judge in the present case, therefore, gave his
charge in accordance with the *law both of Scotland and of En-
gland, when he left it * for the consideration of the Jury, whether
« the words used by Dr. Hope, if they were falsely said of Dr.
* Hamilton, were also said maliciously too, although there was no
4 extrinsic evidence of malice.*1
It has been said on the other ride, that the form of the issue
rendered extrinsic evidence of malice necessary. The word * ma-
' Kctously,' however, was put in the issues, because privilege might
be proved, and it was necessary in consequence of the defender
having averred a case of privilege. The pursuer, however, was
not bound to bring this question to issue beforehand, as it de-
pended on matter of fact ; nor is it conclusive of privilege, but
merely implies that privilege might have been proved, and indeed
malice is often averred, where no privilege is dreamt of.
680 CASES DECIDED IN THE
We Aust look, then, at the circumstances of the case. The
words founded on are proved to have been spoken, and the plea
of truth in justification has been negatived by the verdict. They
were, therefore* Spoken falsely. No doubt, they were spoken at
a meeting of the Senatus ; but there was no evidence of the con-
stitution of the Senatus, or of its jurisdiction over individual Pro*
fessors, particularly as to a matter which had been addressed to
the Patrons. The matter, too, before the Senatus was not the
personal conduct of Dr. Hamilton ;— if a subject of discussion at
all within the province of the Senatus, it could only relate to the
accuracy of the statements in Dr. Hamilton's memorial* There
was no question before them as to his mothfes or principles, and
they had no jurisdiction to take cognisance of his personal conduct
Thus there was no proof of privilege-^-the powers, jurisdiction,
and constitution of the Senatus were quite unknown ; and in-
deed it is judicially denied, in an action at present in Court at
the instance of the Patrons, that they possess any jurisdiction. But
at all events there was no proof of privilege, or even of the belief
of privilege. The question, however, is, Was there a privilege to
protect the words used ? It is said that the words merely expressed
an opinion ; and yet the defender gave in a plea in justification,
the foundation of which necessarily is, that the words were true
itojuct, it being impossible to allow a justification of a mere opi-
nion. Further, the words were not pertinent, as the pursuer's
personal conduct could not be a subject of discussion in the Se-
natus. They were also an invention in point of fact, as the ver-
dict has negatived the offered justification 5 and they were spoken
merely under colour and pretext of being in discussion of the
memorial, as is established by the words themselves, which are
not fitted to further any public duty or investigation. The place,
so far from giving the protection of privilege to the words* proves
that it was resorted to, only as a pretext for using them. It is
not the intensity of the words, but their character, which, we con-
tend, deprives them of the privilege ; and though the privilege
were primarily established, there is abundant proof, even in the
statement in the bill, of the malice which the law requires.
The memorial of Dr. Hamilton to the Patrons was dated in
January 1824— the meeting was in April 1826. The Senatus
had already come to final resolutions on the subject — the pursuer
was absent-— there was nothing to excite passion— and yet the
character of the words used is such as shows that they must have
been intended for the purpose of insult, and not for pursuing the
fcir object of any investigation ; and the platie, instead of raising
a privilege for the words, does, added to thd word*, demonstrate
COURT OF SESSION. m
TnaKce ; and that ttey « mast have been solely or chiefly used for
* the purpose of injuring'1 the purmer. There needs no other evi-
dence, especially when we consider the condition in life of the
parties, and the cool and deliberate offer to prove the averment
m justification, which has been negatived by the verdict ; and that
is extrinsic evidence, if they will have such.
The most essential part of the case still remains, — viz. the cha-
racter of the charge, as given by the presiding Judge. It is ad-
mitted that the general doctrine of law is properly laid down in
the first part of the charge, and it is the latter part that is except-
ed to. But the whole charge, in truth, proceeds on the supposi-
tion of privilege said by the defender to be implied in the form
of the issues.
The Judge says, if there be no privilege, the malice may be in-
ferred from the falsehood ; but if the case be privileged, the Jury
must determine, in the whole circumstances, although there be no
extrinsic evidence of malice, whether the words were maliciously
spoken ; and this is certainly in strict accordance with the law.
In conclusion, it may be observed, that the rule in regard to
a Judge's charge, and which applies here, is well laid down by
Mr. Starkie in the following passage of his Work on Evidence,
(Vol. II. p. 883) :— ' If the publication in consideration of law
* be libellous, then it is a question of fact for the Jury, whether
' it was wilfully and maliciously published; subject, however, to
4 the ordinary presumption of law, that in absence of proof to the
' contrary, a man intends that which is the natural consequence
' of the means which he employs. It follows, that neither the Jury
* nor the parties have a right to expect from the Court any specific
*• and direct opinion on the whole of the case, or any other than
' that which is ordinarily given at the discretion of the Court to
* the Jury in parallel cases, with respect to the verdict which they
4 ought to find, in point of law, as dependent and contingent upon
' their conclusions; in point of fact, drawn from the alleged libel
( itself, and all the circumstance? of the case as to meaning, mo-
* tives, and intention of the defendant/
The Court, (after delaying a few days to consider the case,) by
a majority, allowed the exception, and granted a new trial.
•
Lord Justice-Clerk^— The question for the decision of this Court,
raised da the bill of exceptions presented by Dr. Hope, has been ar-
gued at the Bar with uncommon ability and learning on both sides ;
pi^d, after taking time to consider the case, we are now called upon
to pronounce judgment. It has been stated from the Bar, that the
felt by diem as one of novelty and difficulty ; and I must
!i
if
588 CASES DECIDED IN THE
'say for myself, that it has presented itself in the same 'point of new
to me, for we hare hitherto had but little experience m such discus-
sions, and none relative to the same sort of action as the present.
Although I have consulted all the authorities referred to on both
sides, and have endeavoured to make up my mind in as satisfactory
a manner as possible, I am by no means very confident of having
arrived at an unexceptionable conclusion. But it is to me a matter
of infinite satisfaction to know, that, if I have erred, there is a quar-
ter in which I may and will be set right. We are now called upon
to decide upon this bill of exceptions, taken and prepared with all
due care in the Jury Court,* whether, on the trial of the issues, which
led to the verdict therein stated, the charge or direction in point of
law, given to the Jury by the presiding Judge, was or was not in ac-
cordance with the law of the case ? For deciding this pomt, I must
premise that h appears to me quite certain, that, in order to the de-
termination of it, whatever facts may be necessary can only be taken
as they appear on the (ace of the bill. All that was considered and
deemed to be necessary for deciding upon the legality of the direc-
tion in point of law has been deliberately set forth in the bill; and
we cannot go beyond it. I must also observe, that, notwithstanding
the form of the issues, and the verdict being for the pursuer on these
issues, it does not appear to me that we can assume, in opposition to
the express statement on the face of the bill at p. IS, that-the words
put in the first alternative of the first issue were proved to have been
used by the defender, but that the attention of the Jury was con-
fined to the second alternative of that issue only. Before, then, pro-
ceeding to the consideration of that part of the charge which is ex-
cepted to, we must keep in view the general rules of law that are
applicable to cases of this nature. 1 . 1 take it then as quite fixed, that
in ordinary cases, where an action is brought, concluding for damages
for slanderous words, where no case of privilege whatever can be
pretended to exist, it is sufficient for the pursuer to prove the use of
words of a slanderous, defamatory, and injurious nature, and that in
such a case the malicious purpose of using them will be inferred
without any further proof whatever. 2. Upon the other hand, it is
equally clear, that while there are two classes of cases which afford
an absolute protection against an action for alleged slander, vis. Par-
liament, and the case of Supreme Judges acting in judkio, with
which we have here no concern, still, *i all cases that are held by
law to be of a privileged nature, the presumption of the law is against
malice ; and it is therefore incumbent on the pursuer of an action for
the use of slanderous words, under such circumstances, to bring evi-
dence that will satisfy a Jury, that, notwithstanding the privilege
founded on, the expressions were used maliciously by the defender.
This is stated by Mr. Starkie in a passage quoted from the Bar, and
which explains the matter most correctly, p. 231, Law of Slander.
1 In the two classes of cases immediately preceding) the presumption
COURT OF SESSION. 583
* of law is conclusive in favour of the defendant's huiocOBceof mten-
' turn. There is another, although the motive- of the party be not
< wholly exempted from examination, yet, in consideration of the
* character in which he has acted or assumed to act, the hsr will
' presume in his favour in the first instance, and require the plaintiff
« to rebut the presumption in some particular mode.' In regard to
the question, what sort of evidence ia required to establish malice in
cases of privilege, or in what mode the presumption of law is to be
rebutted, it appears to me, from the best consideration of the autho-
rities, that it cannot be held that nothing but direct and positive
proof of malice, altogether apart from and independent of the case
itself, can avail. On the contrary, it appears to me, that while it is
competent to prove by separate, distinct, (and what is sometimes
termed) .extrinsic evidence, independently of the case itself, that ma-
lice influenced the defender, it is also competent to require the Jury
to take into their consideration the whole circumstances of the case*
itself, with the. conduct of the party in relation to time, place, and
the pertinency of his words to the subject-matter of the privilege,
and decide if .there is sufficient evidence of malice. I think the view
that I have now stated appears to be correct from a case mentioned
by Mr. Starkie at p. 242, which seems to me of great importance in
the present case. The same point seems to me to be well illustrated
in another passage of the same work, p. 260. Such, then, being
the general nature of the authorities on this point in the law of En-
gland, which always has been held entitled to regard with us in
questions, of this nature, and keeping in view the certainty of the
met, that cases 4>f privilege are of great variety, some greater and
some lesser in degree, but in all of which it is indispensable that the
presumption in favour of innocency of intention must be rebutted in
some mode, we must attend to what seems to be the settled rule in
regard to the adjustment of issues in such cases of privilege in the
Jury Court of Scotland* Contrary to the practice of England, where
it is not at all required in such cases to set forth malice in the de-
claration in an action for slanderous words, it has been settled, that
in all the privileged cases of whatever kind, the issue must bear
whether the words were maliciously used, as well as misery and in-
juriously, which last are alone sufficient in the ordinary case. Now,
this being the settled rule in ail such cases, it appears to me that in
every such case the defender in issues so framed goes to trial with
the presumption of law already fixed in his favour, subject, no doubt,
to ail the exceptions that may arise out of the alleged impertinency
of his observations, &c ; and under buch issues so settled, it does not
appear to me that the onus of proving the privilege— 4br example,
the establishing by proof the constitution of the meeting, incorpora-
tion, or Court where the slander is set forth to have been maliciously
uttered— can be laid.upon the defender, or that he can be. turned
round and told he has no privilege or protection fer the want of such
584 CASES DECIDED IN THE
proof, more especially if no denial has been entered, or issues taken
as to the existence of such privilege. To apply these views to the
present case, let us attend to the issues before us in the bill of ex-
ceptions, with the admission on which they rest. Now, I must here
state clearly and explicitly, that it appears to me quite undeniable,
both independently of the contents of the bill, .and in consideration t
of what is the evidence set forth in the nice of this bill, parole and
documentary, that a Professor, discussing a matter which haa been
regularly brought before a Senatus Academicus, and that of the Uni-
versity of Edinburgh, whether relative to the conduct of a brother
Professor, his own individual interest as a Professor, or those of the
body to which he belongs, stands in a privileged situation, with the
presumption of law in favour of die innocence of his intentions as to
the use of words of a slanderous naturer~*-keeping closely to the
subject of discussion, not travelling into impertinent matter, or using
the occasion as a cover and cloak for malice, as indicated by the
whole of his conduct and circumstances of the case. Whether the
malice which law requires to warrant a verdict against him for slan-
derous words is sufficiently proved against him, it will undoubtedly
be for the Jury to decide, even although no extrinsic proof of maJke
has been led. But in such a case, after such issues as were here
settled, fixing it to be a case of privilege, if it were possible to hold
that extrinsic evidence of privilege to some extent or other was still
to be held as matter of doubt, it is impossible for me to lay out of
consideration the body of evidence narrated on the face of the bill,
as to what was the subject-matter of deliberation of the Senatus
Academicus, or the occasion of the question, the traasimesiou of the
memorial of the pursuer by the Patrons to the Senatus, the regular
manner in which the discussion commenced, was proceeded in and
conducted, the adjournment, and the subseqeent resolutions adopted
by a great majority of the Senatus Academicus, (and which, if there
exists no privilege, might have been viewed as bearing most severely
on Dr. Hamilton,) as establishing beyond all doubt that the issues do
no more than was right, in holding that the case submitted t*> trial
was one of a privileged nature. Such, then, being toy optntou as to
the nature of the case that was here subjected to trial, I haver only
further to state, that it is the province of die Court or presiding
Judge to state the privilege to the Jury. They must take the law
from him, and from him alone, before they can approach the consi-
deration of the evidence, either regarding the actual proof of the
' slanderous words having been used, or the evidence on which the
pursuer relies to meet or rebut the presumption of law as to the in -
noeence of the intention of the defender. No authority seed he re-
rerred to in support of what is plain and evident in itself ; bat there
is a case bearing directly on the point, via. that of MXeaa «. Fraeer,
(9. Murray, 856,) as to alleged dshunatkm by a eJergynanetsiineet-
k* of presbytery, where the law appears roost correctly lassl down
COURT OF SESSION, 68S
by the Lord Chief Commissioner. I have Only farther to observe,
that in regard te * place of a privileged nature, when it it necessary
t* direct the Jury n natter of law, as well as in many other cases,
it eppeam to be indispensably necessary that the law should be laid
down in plain, apt, and explicit terms, and in such as a Jury of or-
dinary men can be at no loss whatever to comprehend. Keeping
also in view that a bill of exceptions cannot be taken upon observa-
tions made on evidence— that it is to the law laid down in a charge,
to which akme exception can be taken— -that the whole of the charge
in matter of law is to be taken, and no judakal construction of it re-
sorted to, or a sense attached only to one or two passages picked out
from a context admitting of a different construction—we are bound
to consider whether die direction given to the Jury in this case was
auch as the view of the case requited. lam quite aware of the diffi-
culty of adhering to perfect precision after the fatigue of a long trial
But this bill has been deliberately prepared, and narrates the charge
with the greatest fairness and (we must presume) accuracy. I have
ne intention to enter into a very minute criticism of the words used
from the bottom of p. 13 to the end, although I cannot concur in the
view that has been assumed by the pursuer as to the fair and obvious
import of several passages in it. Reading the whole words from be-
ginning to end, it seems impossible, in my opinion, to doubt that this
was not stated to the Jury to be a privileged case, as, in my opinion,
it unquestionably was. I can find no words that so state it in plain
terms, stud without such an explicit statement having been made to
the Jury, it does not appear to me of any consequence, that in ob-
servation to the Jury in reference to evidence, that which might have
been quite correct, if the privilege had been' distinctly stated to ex-
ist, may be gathered or held to be implied from other passages. In
my opinion, after what is stated aa to the insertion of the word ' ma-
' lidousry' being required to sustain the action, if it was a protected
place, what follows is so expressed as to lead the Jury to hold that
tide was not a privileged discussion in a protected place. I am not
quite aware of die true sense in which the words ' protected place' are
here used, but must take them aa referring to a limited protection
or privilege, as it has never been contended that the Senatus Acade-
nrieus afforded a total protection, such aa Parliament or a Court of
Law. Although it may be argued that the observations made do
not positively assert whether it was a case of privilege at all or not,
yet even if the Jury were left to form their own opinion on this vital
and most important point, before considering whether the words
were maliciously used, that appears to me to bo a total error in the
charge, as leaving what k the question of law for the.detiskm of the
Jury, instead of its being explicitly laid down by the Court. Indeed,
after stating so explicitly to the Jury that there was no evidence of
the constitution of she Senatus— that nothing was proved to establish
protection, it i* impossible for nit, pimiiig a ^irajid consistent mean^
586 CASES DECIDED IN THE
*
. ,ing.on,the charge, to hold |hat the learned Judge did at the tone
time .tell or intend to tell the Jury, that it was .a privileged case.
Accordingly, we have formerly noticed, that in the caae of a master
giving a character, of a servant, although the question of malicious
. . .intention was left kt© the Jury upon the whole evidence of the esse,
it was. stated by Lord EUenborough.to the. Jury, 'J am inclined to
' thiak that this was a privileged eoaununiclttion.' , I need not notice
Lord GUlies* charge in the casjBof Gilchrist*. Dempster, as certainly
there, can be. no doubt that the law was there fiiHy stated to the Jury.
If in this case, it had been. explicitly stated, that if the vrtwds used
were pertinent, there, could he no doubt of the pri vilege,#or that it
was admitted, the case would have been widely different.
. . , In concluding, I must notice the passage from Mr. Starkie, p. 883,
with which .the Dean of. Faculty closed his very able -argument,
which, as read at the moment, made an impression an my mind as
to how a charge ought to be dealt with in a case of this* kind. 1
find, however., that the passage rekftesto a different matter altogether.
. As to the objection to jthe concluding: sentence of the bill, in regard
. . to what the charge ought to have been, being such as cannot warrant
. its being allowed, I do not think it can be maintained with -effect.
The precise terms on which the defender insists the charge ought to
have been given to the Jury may not be stated with perfect techni-
cal accuracy, but it certainly does state .what in substance is suffi-
cient, namely, that the discussion in the Senatus was a privileged
one, in which the defender was entitled to take part ; and I cannot
see that, in what follows, there is anything stated that can be held to
vitiate this bill of exceptions, which, for the reasons I have stated,
must in my opinion be allowed, and a new trial- granted.
Loud GLENLEE^—We cannot, suppose any particular met to be found
by the Jury. No particular expressions are found, but generally that
the defender had imputed wilful falsehood to the pursuer. I there-
. fore lay out of view all but what the complaiaer complains of- — viz.
that he was entitled to have had a direction that the ease<waa .pri-
vileged. His objection is, that the Jury should have been directed
to find for the defender, in respect of the place and meeting being
privileged, which her said he had proved, there' being no extrinsic
. proof of malice, and that the Judge should have stated, If you* the
Jury, are satisfied that the words are pertinent, &c and that there
. is no extrinsic proof of malice, the place being privileged, ywu will
give a verdict in flavour of the defender. We must judge of the bOl,
as of the charge, by what was the real meaning of the words em-
ployed ; and I think the defender's exception amounts to the sense
I have mentioned. We are here to determine whether, en the whole,
the Jury retired with the impression that it was of no consequence
whether there .was extrinsic proof of .malice, and whether the caee
was privileged or not ;. and we must consider what pUm honest men
would conceive of the charge. I must here observe* that there night
COURT OP SESSION. 687
hare been a difficulty, if the Judge had said' nothing of protection at
all. That case I shall consider when it occurs. But here he said a
great deal about protection ; aqd his declining to make an explana-
• tion when the exceptions to the charge were stated, is just tanta-
mount to saying more strongly than before that there was ho privi-
lege. And we must keep'this in riew in considering what must hare
been the impression of the Jury on the matter ; for I conceive that
we must'attend to the meaning of the charge as it would be taken
by ordinary men ; and we muat not draw a meaning which only the
initiated can discover, or go into nice grammatical constructions, al-
though even in these I do not think the defender was* very success-
ful. It is a much more important plea, that, in consequence' of the
way of framing the issues, protection was allowed ; and that every
thing said must be held as if it were taken for granted there was a
privilege. Now, no doubt, it is not necessary to libel malice where
there is no protection; but it does not follow that malice may not
properly be alleged in such a case, for it is a very different thing, as
to die question of damages, whether there be malice or not ; and it
is very material to show malice even in 8 protected case. It rather
' appears to me, therefore, that as the Judge states that nothing was
proved to establish protection, and then states different kinds of evi-
dence of malice, and says this case is not protected, and therefore
you will consider "of the malice on the whole matter, that he leaves
it to them as a case without privilege ; and with this view of the
meaning of the charge, I am of opinion with the Lord Justice-Clerk
that the exception must be allowed.
Lord Pitmilly.— -This is a case of considerable importance, and I
have bestowed the most anxious consideration on it. The distinc-
tion between common and privileged slander is, that in the one the
.law presumes malice ; and in the other, the pursuer must prove, in
some way or other, that the words were used maliciously. Certain
persons are entitled to speak of their neighbours from duty, &c. In
regard to slanderous words spoken by them, the legal presumption
is, that they spoke from such motives ; and the pursuer must' prove
malice against the presumption. As to the kind of proof, and whether
the pursuer is limited to extrinsic proof, I have no hesitation in
agreeing with the doctrine laid down from the Chair, that the whole
circumstances are to be considered by the Jury in proof of the ma*
lice ; nor is there any inconsistency m the law presuming' against
malice, and yet taking all .the circumstances into view in proof of it.
The next question is, whether it lies on the Court to lay down if the
case be privileged, and how this is to be done ? I have no doubt
that privilege i» a question of law to be laid down by the Judge, and
it comes under consideration of the Court when' the issues are drawn.
If -clearly not a privileged case, the issues only ask if the wordtfwere
spoken falsely and injuriously j— when privileged, they always ask
also if maliciously spoken. Innumerable instances of this practic*
588 CASES DECIDED IN THE
have occurred in the Jury Court ; but the strongeet illustration is
the case of Gibsons e. Marr, (Murray, 258,) where the same scandal
was charged twice. In the one instance it was privileged, and in
the other not so ;— accordingly, maliciously was put in the first, and
bo* in the second. There may be a doubt whether a case ia privi-
leged or not ; and the doubt may bo either a* to the fret, or as to
the law. If as to law, the rule is to bare it decided beforehand. This
is quite established ; and accordingly, I obaenre that in the hie case
of Milbollan * . Dalrymple, (ante, Vol. V, No. 10fi») the question as
to whether malice must bo averred arose si adjusting the issues,
and the case was remitted to this Court to have that question set-
tled. If the doubt arises as to point of feet, it would be a difficult
question how to deal with it; and it is not settled. The next ques-
tion is, Who are the parties entitled to this privilege? When not
an adjudicated case* we must look td the principle which governs
ail cases, where it ia the duty of a party to apeak of hia neighbour,—
as a master in giving a character of a •servant, or when be is in the
exercise of a legal right aa a litigant. Where a peraon ia called on
or entitled to apeak of bis neighbour, he must confine himself to
what is pertinent; and it ia of importance, that* so fer ea we are*eo-
titled to judge of words charged here, the verdict, accordiag to the
statement in the bill, is limited to the words aa in the second alterna-
tive of the issue. I certainly have no doubt that tfaia ia a privileged
case. It is proved by the admissions that both parties are Professors,
and that the words were spoken at a meeting-of the Senates Acede-
micus, summoned for die discussion of a question arising out of Dr.
Hamilton's memorial, and the statements in that memorial ; and un-
derstanding the nature of privilege to be aa I have already stated it,
I think the language so used was of the nature of a privileged dis-
cussion, so as to lay on the pursuer the proof of malice. Then, did
the defender omit any thing necessary to prove bis privilege by
proving the constitution of the Senate*? I apeak with deference, bat
think that no proof of the constitution waa necessary, and that the
legal presumption lay against malice. To this extent it wae enough
that the defender waa a Professor* and in hia own body called tor the
discussion of this subject. The point en which I demur ia, that the
charge does not state that there ia no privilege or protection, but only
that there is no evidence of privilege, which is aa obseraftsoa en the
feet. In considering the change, therefore, I will confine myself to
what are observations ia point of law> which alone ea* be the subject
of a bill of exception*. Two parte of the charge contain observation*
on law. No objection can be taken to die first part* on page 13
of the UU. But it is the other, point of law which UKea with the
Court to fix, via. whether this waa a privileged case, or one of com-
mon slander, that I have alwayB felt the greatest difficulty. lam
aware that, in judging of tee direction, itutuet aotee allowed to picJc
out detached sentencoa ■ wnnwsil take the f sit swpasmatf.il» stage*
COURT OF SESSION. 589
Bat, on the whole of it, I cannot persuade myself that the Jury oould
consider that the case was left to them as a privileged case ; and I
therefore cannot faring myself to think that the exception should be
overruled.
Loan Alloway.*-* There ace soma principles applicable to this case,
which I understand to be clear and incontrovertible. The first is,
that, in considering the question, we must not travel beyond what is
stated in the bill of exceptions, and the verdict pronounced by the
Jury. And, in this view, although the pleadings were most able,
I cannot help thinking that the learning and ingenuity of the coun-
sel upon both aides have introduced matter not altogether relevant
to this discussion, which, if the view I entertain of it be right, is but
a short question* In the next place, I conceive that it is now a fixed
rule in the law of Scotland, that it is quite unnecessary to libel ma-
lice in an ordinary case of slander; but that the proof of the words
spoken, if falsely spoken, will be perfectly sufficient per se to infer
malice. Whereas, if the alleged slander has been committed in the
pleadings either of a Supreme Court, which is the most highly pro-
tected place we know except Parliament, or in the pleadings of any
Interior Court, or stated in confidential situations, or in a discussion
in a public body privileged and entitled to bold such discussions, it
ia necessary not only to libel that the slanderous expressions had
been falsely stated, but that they are also maliciously stated; and
for this reason, though defamatory words, if uttered in a common place,
would entitle the pursuer instantly to a verdict upon proving their
utterance, yet, in a privileged place which warranted such a discus-
sion, it might be necessary to prove that they were maliciously said.
I am also clear— Hind I think my opinion is confirmed by every au-
thority to be found either in Scotland or in England— that it is not
necessary in cases of protection to prove malice by what is called
extrinsic evidence; but that the Jury, in every such case, must judge
from the expressions made use of, whether they could be justified
by the piece where they were made, and that it is enough for them
to find that they were falsely spoken, and that also, in the circum-
stances of the case, they were maliciously spoken. Indeed I con-
aider the whole doctrine on this subject so well illustrated by the
charge of the Lord Chief Commissioner in the case of MXean
-v. Fraser, (Murray, VoL III. p. 355,) that I shall refer to it as con-
taining the whole doctrine which has been founded on by either of
the parties in this case. It was an action of damages for words
apoken in a Church Court*— « In reference to this case, (says his
* Lordship,) actions for slander may be considered as of two kinds.
4 Either die defender has or has not a right to speak of the pursuer.
' If he has not, then he is liable, if the accusation is fake. If ha has
' the right, then be is protected, unless he maliciously make the. ac-
* *»JM«*i<w^ In the first case it is not necessary to state malice, as it
* k eumaent. if falsehood and injury am proved ; but, in the second,
590 CASES DECIDED IN THE
' malice must be stated and proved, as it is the ground of the action.
' Whether a case falls within one class or the other, is a question for
* the Court ; but whether malice is proved, rests entirely with the
' Jury. In the present case there is no proof of any grudge or act
* showing malice ; but the proof of it is rested on the facts' and dr-
« cumstances, and, according to your opinion of diem, you wilt find
' for the pursuers or defenders.' Now, in the present case, it is ad-
mitted that the pursuer expressly libels upon the expressions com-
plained of being falsely and maliciously uttered ; and accordingly, in
the first issue sent to the Jury, they are expressly desired to try
whether the words there stated as having been used by the defender
' were false, malicious, and calumnious. The 2d and the 3d issues
seem to me to have been prepared for the purpose of enabling the
* defender to justify his conduct, and to establish the Veritas convien
by proving that the averments contained in the memorial were
known to . Dr. Hamilton to be false when he presented Aese
papers. Now the Jury have rebutted die justification, and have
found for the pursuer on all the issues. No doubt, although we can-
not enter into the matter of fact, of which the Jury were the sole
judges, we are entitled to consider whether the charge to the Jury
was a misdirection in point of law* according to the circumstances
stated in the bill of exceptions. ' It humbly appears to me, that
neither of the grounds set forth in the bill, in' the circumstances of
this case, affords a good or a legal exception against the charge de-
livered. This leads me, however, to take notice of the. Lord Chief
Commissioner s charge. Indeed it is necessary for me to dwell upon
it very shortly, not only to submit some views of thai charge differ-
ent from what have been stated, but also as necessary to explain the
objections which occur to me as to. the legal effect of the exceptions
which have been made. The' substantial part commences at the
foot of page 13, and I conceive' that the learned Judge, in the first
part of it, laid down the law most distinctly and most accurately,
'- and according to every case that has been decided, either in thin
country or in England. In an ordinary case of .slander, it was* not
necessary to state more than that the words were falsely uttered ;
but that, in any question as to a protected place, both the Bummonsi
and the issues must contain that they were not only falsely but mnv-
liciously uttered. And it is undeniable that the summons ami
issues are quite correct in this Tespect. Now, let me go down to
the last and concluding part, at the distance of 18 lines. I
afterwards consider those lines I have now passed ; — * It waa
' fore for the consideration of the said Jury, whether the words
' by Dr. Hope, if they were said falsely of Dr. Hamilton, were
' said maliciously, although there was no extrinsic evidence 'of
€ malice.' I conceive that under this final clause, which may be
to be the summing up of the whole charge, there are three
tiona expressly stated. to the Jury. 1*. That it was necessary
' COURT OF SESSION. :391
the Jury to consider if the words used were falsely used. 2- That,
although falsely used, they must consider whether they were mali-
ciously said. And the third proposition is, ' Although there was no
4 extrinsic evidence of malice.' Now I conceive that this contains
the whole sound and legal doctrine, both in this country and in En-
gland, with regard to words spoken in a protected place, that the
words used must not only he falsely used, hut must be maliciously
used, and that the Jury are the judges of the malice, although there
be no extrinsic evidence of the malice ; — in short, that malice may
he inferred from the facts and circumstances of the case, from the
animus injuriandi, and from the words made use of being such as
could not be justified by any place. And I conceive that this con-
tains the sum and substance of Lord GiHies's charge in the case of
Dempster *. Gilchrist, (see Borthwick, page 439,) which seems to
have been held as a model by both parties, and in which I certainly
concur. But, in so far as I can judge, the defender, in the two
quotations I have made, seems to have obtained the benefit of every
proposition laid down by Lord Gillies. In short, he leaves the
animus injuriandi entirely to the Jury, which they would consider
and apply in the whole circumstances of the case. To the doc-
trine, therefore, contained in the first and the last parts of the
charge, it seems to me impossible to state any objection. Now I
proceed to consider t^e parts objected to, beginning with the words,
* And accordingly the word maliciously was inserted in the issues,
* on which two observations arose,' &c Now, here certainly the
Judge did not say that this was not a protected place. It is true
he said there was no evidence of the constitution of the Senatus
Academicus, and nothing was proved to establish protection ; and
certainly there was no proof whatever upon that subject, which is all
thai lie says. There might have been evidence led upon the part
of the defender, showing that the Senatus Academicus was suffi-
ciently constituted to try, to convict, and to punish any of its mem-
bers for moral delinquency. If so, it should have been given in evi-
dence. But when there are such disputes betwixt the Patrons and
this Senatus Academicus itself, I do not think that it was an observ-
ation impertinent to the cause in the Judge to take notice that
there was no evidence of the constitution of the Senatus ; for al-
though it may be known that there is a Senatus Academicus, and
although the University returns a member to the General Assembly,
yet it might perhaps have been right to have had some evidence,
both as to die nature of its constitution, and the protection It affords.
It were not sufficient to say that there was a Senatus. Their con-
stitution, and their power to try such a question', might have been given
iit evidence. Nothing seems to be taken for granted in the Jury
Court, as I observe that the issues in this case begin by stating, that
4 ft being admitted that the pursuer is Professor of Midwifery, and
* thai thje defender fe Professor of Chemistry,'— facts surely more no-
vofc. v. 2 p
592 CASES DECIDED IN THE
torious than the constitution of the Senates, and their power of en-
tering into the discussion of the conduct and character of the in-
dividual Professors. I conceive that the fair meaning of the Judge
must be taken, in the words just read, to have been this, ' that nothing
' was proved to establish protection ; and that as to malice, if that
1 (i. e. protection) should be made out, it was for the Jury' to con-
sider the malice in two points: 1. Because it seems to me hard-
ly possible, either in common sense, or according to the fair mean-
ing of the sentence, to apply ' that' to malice, without keeping in view
that it was only where protection was established that his observ-
ations as to malice could apply. For instance, how could extrinsic
malice apply to any thing but protection ? Extrinsic evidence of ma-
lice was never heard of, and was totally unnecessary in any ordinary
case, and applied solely to protection. But if I am right in what
I formerly stated, and what has been uniformly stated on every
Jury trial in this country, in so far as I know, as well as in England,
that extrinsic or express proof of direct malice was not necessary,
but that intrinsic or internal evidence might arise out of the facts
and circumstances of the case, and out of the character and nature of
the words used, then if the words used were impertinent, unneces-
sary, and not intended to forward the argument, but to insult and
harass the feelings of the person to whom they were spoken, die
Jury were certainly entitled to consider quo animo they were uttered,
and whether they were to infer malice from them or not. In shorty
as the Judge's first observation upon extrinsic malice applies solely
to protection, so I conceive that the second observation he makes
as to intrinsic malice applies also to protection alone, and could
not possibly be applied by the Jury in any other way, as the kerned
Judge had before told them that it was only in a protected case
that it was at all necessary to libel upon malice. The Judge
then proceeds. As to the first he remarks, that there
extrinsic evidence of malice. And I fairly admit, that If
evidence was necessary, the exceptor would have been entitled to a
new trial, because, if it was necessary, as the Judge has said it
was unnecessary, the verdict could not have been supported. Then
the Judge goes on : * As to the second, intrinsic, or malice arising
* out of the circumstances of the case, and out of the character
' and nature of the words proved, it was a question for the amid
' Jury, on the whole proof, to consider with what animus Dr. Hope
( spoke the words, and whether they were maliciously said.' Now
this was applied only, and could only apply, to a protected case
cause, if it were otherwise, it was not necessary for the Jury to
sider with what animus Dr. Hope spoke the words, and whether
they were maliciously said. And this, as he had stated just shore,
arose out of the facts and circumstances of the case, and from the
character and nature of the wards proved. If I am right in this viewy
it seems to me to be perfectly dear, according to every fair
COURT OF SESSION- 598
tion, that the learned Judge's observations, both upon extrinsic and
intrinsic, apply solely to protection, and to protected places, and could
not possibly apply to any thing else; and that the relative that can
only apply to protection, to which he shows how malice, both in-
trinsic and extrinsic, is to be applied. The learned Judge then pro-
ceeds : ' He could not state to the Jury that this was a protected
' place. The words used were not protected by the place where
' they were spoken.' These words are the most inaccurate in the
whole charge, and, as to their effect, my mind was at first left in
some suspense and doubt. But I think I can see clearly what was
the intention of the Judge, and how it may be reconciled both
to the preceding and posterior parts of the charge, as to which I
cannot see any ground of exception. Although the Judge had for-
merly explained that there was no evidence of this being a protected
place, and certainly none had been led to that effect, yet every word
of the charge proceeds upon the supposition that it was a protected
place, and not one word which he has stated to the Jury would have
been necessary in any other view ; and therefore I conceive that perhaps
it is but fair to construe the words consistently with every other part
of the charge. And I beg, with great deference, to submit whether
the Judge did not explain to the Jury what he meant, that he could
not say from die evidence that this was a protected place, but that
the words used were not protected by the place where they were
spoken. And certainly there are many words which never could
be protected by the place where they were spoken, however pro-
tected that place might be ; and although no evidence had been led
as to the nature of the protection, the Judge was surely entitled to
say that these words could not be protected by the place where
they were spoken, nor by any place whatever. Every word of the
charge gives the defender the full benefit of the protected place, al-
though the Judge certainly says that the words were not protected
by the place where they were spoken, which just comes to this, that
in a Senatus Academicus one Professor was not entitled to say to
another that ' the fellow lies, and knows that he lies.' Now, if this
be a misdirection in law, that the words used, as contained in the
libel and the issues, and proved, were not protected by the place
where they were Bpoken, then I would certainly concur in thinking
that there was a misdirection in his charge.
But I can never conceive that any place, however protected, could
warrant the use of these words, nor that the Senatus Academicus
could have warranted them ; and therefore I conceive, that even giv-
ing the utmost latitude of protection to the place where they were
uttered, the words used were not protected by it. I really do not
know any place that would protect the use of such language. Sup-
posing that a respectable body of Professors, assembled to discuss,
and believing themselves entitled lo discuss, either the medical curri-
culum, or the propriety of the memorials presented by Dr. Hamilton
2p2
594 CASES DECIDED IN THE
to the Patrons, I cannot conceive that the place where, on aoaount
•f the characters present, every thing ought to have been conducted
hi a temperate and dignified manner, could possibly warrant the use
of such opprobrious epithets as were found to be proved by the
verdict on the first issue. Instead of forwarding the cause, the ar-
gument or the discussion in which they were engaged) I conceive it
must at once put an end to all discussion* If the parson to whom
they were applied had been present, it must hate led to immediate
personal violence, be the consequences what they might, and put an
end to all discussion. I conceive that the proceedings in a Supreme
Court are entitled to a higher degree of protection than those of any
other meeting, Parliament excepted ; yet if it were possible to sup-
pose, what I cannot conceive possible, that any gentleman, either in
presence of the Court, of at a Faculty meeting, could apply such
terms to a brother advocate, I conceive that the place, however pro-
tected, could not protect the words spoken, but that it would be
held relevant to send the case to a Jury. Your Lordships will re-
collect the late case of S win ton r. Taylor, where language, very differ-
ent indeed from what has been made use of on this occasion, although
used in judicial pleadings, under feelings of great irritation, and of
great suffering, yet, as it was not pertinent to the case, was found
to be such that it could not be protected, even under such circum-
stances** In the same way, in the case of Andenson «• Richard-
son, 13th June 1787, which was the case of a Professor giving ad-
vice to three of his students, and where it was pleaded that a Pro-
fessor, in relation to his students, stood in the situation of a father
or guardian, and was completely protected for what he said to them,
Anderson brought an action before the Commissary of the dptrict,*
libelling that Professor Richardson had injured his character, and that,
in a conference with three students, he had mentioned .that Ander-
son was a bad man, and a detestable member of society. The Com-
missary, on account of the confidential situation of the parties to
whom this was communicated, assoilzied the defender ; but the Court
altered the judgment, and repelled the objection to the relevancy
of the libel. This was certainly showing that no protection from
confidential situations could warrant the use of such language and
such slander; and yet I cannot help thinking that that was a
much more protected case than the present. The Commissaries of
Edinburgh found damages due by Dr. Duncan to this Dr. Hamil-
ton on account of words spoken by him in this very Sonatas Acade-
micus, and in his diss to his students ; and this Court confirmed
their judgmenkf I do not mean to enter into the circumataaoes in
the case of Scarlett, and of Forteath Williamson v. Lord Fife, and
many others referred to by the counsel, all of which I consider to
• Ante, Vol. I. No. 71, Affirmed 4th June 1824.
t Ante, Vol. IV. No. 880.
J
COURT OF SESSION. 50&
be weH decided* In all of these cases, it was a question for the Jury
on the whole proof, to consider with what animus the person spoke
the words ; and it was therefore for the consideration of the Jury,
as was stated by the Judge in the present case, whether the words
used, if they were said falsely of Dr, Hamilton, were also said mali-
ciously, although there was no extrinsic evidence of malice; and I can-
not help thinking that in every part of this charge the defender had the
full benefit of this being a protected place, although it was not suffi-
cient to protect the words spoken. Now, in the House of Lords, in
Lord Fife's case, it was asked in what manner the party had been in-
jured by the charge; and it was laid down that it was absolutely ne-
cessary to state, not only what the misdirection was, but what it was
that the Judge ought to have said. If the defender had wanted any
explanation of the charge— if he had wanted the Judge to state
whether it was a protected place or not, so as to admit of fair dis-
cussion—and whether, under such protection, real or believed, the
defender was entitled to make use of such language— and whether
it was pertinent or impertinent to the case, this ought to bare been
stated ; and the Judge might have given his opinion to the Jury,
whether, even supposing the place had all the protection which they
claimed for it, it was not the duty of the Jury to consider the animus
with which these words were spoken, even supposing the words
had been used in a protected place*. This is just what occurred in
Lord Fife's case, where there had certainly been an inaccuracy in
point of law* In this view, I call the attention of the Court to the
exception taken, beyond which surely the party cannot pretend to
go- It first states that the Judge ought to have directed the Jury
to find a verdict for the said defender, on the ground that the discus-
sion at the meeting of the Senatus Academicus, on the 23d of April
1825, was a privileged discussion, in which the defender was entitled
to take part, and that the defender had confined himself to the pro-
per subject-matter of that discussion ; — that the expressions then and
there used by the defender referred solely to the representation laid
by the pursuer before the Patrons of the University, as to the man-*
ner in which the defender and certain of his colleagues discharged
their professional duty — which representations were contained in
the foresaid petition and memorials, then regularly under discussion
in the Senatus Academicus. Now, although I have certainly great
cause to regret that the charge of the Lord Chief Commissioner has
not been so perfectly accurate as it usually is, so as to give rise to
this long discussion, and which may be accounted for from the great
fatigue of this trial, and from the charge having been delivered at
four or five o'clock in the morning, yet I must say that his direction,
with all the imperfections with which it has been charged, is more
accurate and more legal, and more consonant to the practice both in
England and Scotland, than what, it is insisted in the exceptions, he
ought to have done. For if, instead of leaving to the Jury to consider
.596 CA6ES DECIDED, &c.
with what animus Dr. Hope spoke the words, and whether, if they
were said falsely of Dr. Hamilton, they were also said maliciously!
he had, on the contrary, adopted the words in the exception, he
would have been depriving the Jury of the possibility of judging what
was the animus with which they were used, and which belongs to.
the Jury alone— whether they were pertinent to the subject of in-
quiry—whether they tended to further the subject of discussion—
and whether, if they were said falsely, they were also said mali-
ciously. In short, I do humbly conceive, that if the Judge had
adopted the very words insisted upon in this exception, it would
have been a most illegal charge— a charge which could not have been
justified ; and I cannot conceive that this Court could have supported
such a charge as is proposed in this part of the exception. But, then,
there is a second ground for exception, which seemB to me to be
equally ill founded with the other, and likewise on the ground that
there was no distinct proof of express malice given in evidence to
make out a case of malicious libel. Now, in Lord Gtllies*s charge,
and in every other charge that I have seen, it is expressly stated that
no proof of express malice was necessary — that the Jury were entitled
to infer that malice from the animus with which the words were
spoken— -whether they were pertinent or impertinent to the discus-
sion— whether they were spoken with the view of forwarding the
cause, or with the view of venting malice. If the Judge had stated
what it is proposed he should have done in this second ground of
exception, I should have conceived that it was totally erroneous in
point of law — that extrinsic or direct evidence of malice waa not ne-
cessary in that or any other case ; but that it was the duty of the
Jury to judge, in the first place, whether it was false, — and, secondly,
whether, in the whole circumstances of the case, it was also mafi-
, cious and uncalled-for, either as pertinent to the question, or as for-
warding the discussion. It is on these grounds that I consider the
exception not well founded.
Pvrnter's Authorities.— Starkie on Libel, 241 ; S. Starkie on Evidence, 8GM83,
912, 3, 4 ; Gilchrist v. Dempster, (2. Murray, 471-8) ; Lord Gillie* in M'Leta
v. Fraser, (3. ibid. 365) ; Lord Gillies in Tytler, (3. ibid. 266.)
Defender's Authorities. — Starkie on Libel, p. 232 ; 2* Starkie on Evidence, 662,
7, 8, 9; 873-902, and cases referred to ; Williamson, Nov. 18. 1819, (F. C.) and
March 20. 1821, (2. Murray, 463) ; Tytler v. M'lntosh, (3. Murray, 244) ; Gib-
son ci. Marr, (ibid. 258) ; M'Lean p. Fraser, (3. Murray, 353) ; Cooper r. M'Intosh,
(ibid. 362) ; Gilchrist p. Dempster, (Borthwick, App. 439) ; JekyU ». Sir John
Moore, (Holt, 1 78.)
A. Goldie, W. S.— W. and A. G. Ellis, W. S. — Agents.
CASES
DECIDED IH
THE COURT OF SESSION,
SUMMER 1827.
sss-pa
K. Mackenzie, Pursuer.— D. of F. MoncrdJj^Mulkerfi$rd— No. 290.
Penney*
W. Fraseb, &c, T)efendm.-^ej]frey>^am!e4on~-J. Wood.
Cfe**sMt0r.~Parties hawing bound themselves as cautioners for a tenant, but stipu-
lated that the landlord should exercise his right of hypothec before having re*
course on them ; and he having sequestrated the tenant's effects, hut it being
alleged that he had delayed to sell them— Held that the cautioners mere liable.
Kbuhbth Magkbksix of Dundonnell held a lease of the house, May 19. 1887.
farm, and garden of Seahank near Inverness from 1815 to Mar- ln Dmsiow.
tiatnas 18S8. Having intimated ins intention to sublet them, Lord AUoway.
Mrs. Fra&r, with consent of her husband, Captain Fraser, (who S.
was alleged, to be insolvent,) addressed a letter, on the 14th of
May 1818, to the agent of Mackenzie, offering to take a sublease
at a rent of £185 per annum, payable at Martinmas, till the ex-
piration of the principal one, and stating, that ' I shall find
( caution to your satisfaction, if required, for payment of the rent
* offered by me; and failing my doing so, I oblige myself to re-
* move from the premises at Martinmas next/ Caution having
been required, the following obligation was granted by the de»
fenders to Mackenzie : — < Inverness, 26th May 1818.— We, Ed-
* ward Fraser* merchant in Inverness, William Fraser, tacksman
* of Borimn, and John M'Tavish, writer in Inverness, hereby
* guarantee the jeat of £ 136 offered by Mrs. Jean Fraser for
* Seabank, in manner stated in her missive,-— the principal tacks-
* man, Dunckronetl, being boupd to exercise his right of hypothec
* before calling upon ub to fulfil this oblsgatiep.' In consequence
vol. v. 2 a
598 CASES DECIDED IN THE
of this obligation, Mackenzie accepted the offer of Mrs. Fraser,
stipulating that he should be allowed to retain possession of a
servant's house till Martinmas then next — that she should pre-
serve his growing crop from damage by cattle— and that a died
and a few articles of furniture should be taken at a valuation.
None of these stipulations were contained in the original offer, and
the defenders alleged that they had not been communicated to
them.
Mrs. Fraser and her husband took possession ; but a short time
prior to Martinmas 1819, (at which term ^hefirpt; year's subrent
was payable,) Mackenzie alleged that, seeing that it was not likely
to be paid, he caused a petition for sequestration to be prepared,
which he sent to the defender M'Tavish for revisal, but that it
was returned with a note on the back of it, stating that he consi-
dered it premature and oppressive. This statement was denied,
and no proof was taken as to it ; but Mackenzie, assuming it to
be true, stated that, in consequence thereof, he delayed to apply
for a warrant .of sequestration till the 30th erf November 1819,
when it was obtained and duly executed. He further alleged that
he was induced, by remonstrances from the defenders, to delay
proceeding to a sale ; but these allegations were also denied.
On the 3d of February 1820, Mackenzie's agent wrote to the de-
fender M'Tavish (who acted for himself and the other defenders) a
letter in these terms :— < As one of the sureties to Dundonnellfor
c the Seabank rent due by Captain and Mrs. Fraser, I beg leave to
( inform you that sequestration has been executed against them ;
' and as this step has not produced payment, I have to request
* you will, on receipt, settle the rent due at Martinmas last, being
' £135 sterling, exclusive of interest and expenses. If you and
* the other cautioners desire it, my constituent will give an assign-
' ation to his right . of hypothec.* To this MTavish wrote :—
' In reply to yours of yesterday's date, addressed to me as one of
* the sureties to Dundonnell for the Seabank rent, I beg to say,
' that I do not consider myself bound as such. A new bargain
? was some time thereafter made by Mrs. Fraser, to which the
' intended sureties were not parties,' &c. ; and he therefore de-
clined to pay the rent
On the 26th of August 1820, Mackenzie obtained a warrant of
sale, which he executed on the 29th of September, by selling off
effects to the extent of i?81. 17s. ; but the sale of the rest of the
effects was postponed, because (as he alleged) no offerers
peared. The sale was reported on the 5th of October, when
new warrant was craved ; but this* was resisted by Captain
Mrs. Fraser, and it was not obtained till the Slst of March 18X1 . 1 1
COURT OF SESSION. 699
'was carried into execution on the 10th of April, when a horse (bung
the only article remaining on the ground falling under the seques-
tration) was sold, — the rest of the effects having been attached for
Government taxes, or made use of by Captain and Mrs. Fraser.
In the mean while proceedings had been adopted to make
effectual the hypothec for the second year's rent due at Martinmas
1820 ; and accordingly, in October of that year, warrant to cut
down and secure the growing crop, and also to sequestrate the
effects of the farm, was granted and executed. The greater part,
however, of the sequestrated goods was carried off by the diligence
of the servants for payment of their wages, after a competition
with Mackenzie. On the 21st of January 1821 he obtained a
warrant of sale, which he executed on the 13th of March ; but
there was only realized the sum of £8 : 4 : 1.
When the third year's rent became due at Martinmas 1821 *
Mackenzie alleged that there were no effects on the farm be-
longing to Captain and Mrs. Fraser ; but, on the 11th of January
1822, he obtained and executed a warrant of sequestration, which
was intimated to the defenders.
Soon thereafter he raised an action of irritancy and removing
against Captain and Mrs. Fraser, alleging that they were more
than a year's rent in arrear. The defenders were not called as
parties to it ; but it was resisted by Captain and Mrs. Fraser.
Decree of removing was not obtained till the 2d of March 1822,
when Mackenzie, in virtue of it, entered to possession. He then
raised an action against the defenders, founding on the letter of
guarantee, and concluding for payment of the rents, under de-
duction of such sums as had been realized by means of his seques-
trations, and by resuming possession.
In defence it was maintained, That the guarantee was not ap-
plicable to the offer of sublease which had been accepted, seeing
that the acceptance was clogged with conditions of which the de-
fenders had not been made aware ; and that, at all events, Mac-
kenzie had not duly exercised his right of hypothec.
Lord Alloway found that ' the defenders guaranteed payment
' of the rent in question, and that there is not any condition in
' the acceptance by the pursuer to invalidate said guarantee ; but
* that, by the letter of guarantee, the pursuer was bound to use
* bis right of hypothec before calling on the defenders to fulfil
' that obligation : — that the defenders are entitled to insist upon
4 the pursuer's having bond fide .exercised his hypothec for their
' security ; and that they will be entitled to be relieved from any
.' part of the rent for which the pursuer had not used the ordinary
* means of securing and rendering it effectual under the hypothec-
2 q 2
eoo
CASES DECIDED IN THE
< atiop ;' and appointed the case to be enrolled, to carry these
principles into effect. In this interlocutor both parties acquiesced ;
and his Lordship, on subsequently bearing them, pronounced-this
interlocutor : — ' In respect that the pursuer failed, for the first
c three years, to exercise his right of hypothec in the effectual
' manner which, from the condition in the letter of guarantee, he
* iras bound to do, finds the defenders relieved from their respon-
sibility, and from the conclusions of the libel, in regard to the
' rents of these three years, and to that extent assoilzies the de-
' fenders ; but in respect the tenants, during the fourth year of
* the lease, left the farm unlaboured, and wholly displenisbed, so
' that no hypothec could be exercised, finds the defenders, under
' their letter of guarantee, liable for the fourth year's rent, being
4 £135 sterling, due at the term of Martinmas 1892, with the
' legal interest thereof from that term till paid ; but wider the
4 deduction of such sums as the defenders can instruct that the
' pursuer either received from the landlord, or drew the. benefit
* of, during that year's possession/
Against this interlocutor both parties represented ; and while
his Lorddhip adhered so far as Mackenzie was concerned, he al-
tered, and assoilzied the defenders in toto, ' in respect of the pro-
* ceedings before the Sheriff, by which Captain and Mrs. Fraaert
' lease was irritated, in terms of the Act of Sederunt 1756, by
c the pursuer Mr. Mackenzie, and they were removed from the
< possession without the cautioners being even called in the pro-
* cess ; and the pursuer Mr. Mackenzie entered to possession rf
4 the farm, cultivated the Bame, and made an arrangement with
c the landlord, without the concurrence, knowledge, or approba-
' tion of the cautioners."
Against these judgments Mackenzie presented a petition ; but,
on advising it with answers, the Court adhered. He then pre-
sented a. second petition,* on considering which the Court ap-
pointed him to lodge a condescendence ' explanatory of the facts
' as to the delay in regard to the sequestration for the first year's
' rent, and also as to the extent of the effects sequestrated/ On
advising that condescendence with answers, their Lordships ap-
pointed him * to lodge a second condescendence, stating the spe-
■« rial facts which he avers and offers to prove in the event of the
* case bring sent to the Jury Court, and also the pleas winch he
* claims as competent to him in law.' A condescendence and an-
swers, with notes of pleas in law* by each of the parties, were then
lodged, in which it was maintained on the part of the pursuer,
* A note of pleas containing argument wsus ordered to be withdrawn.
«
COURT OF SESSION. 601
1. That all that could be required from him waa, thai he should
exercise bon& fide Iris right of hypothec ;— that it was not incum-
bent upon him to prosecute his diligence to a conclusion by sale
with all the rigour and dispatch which the forms of law might
admit of, and which of necessity would have been productive of
ruin to the tenants, and so disabled them from paying the rents
of the subsequent years ; but that it was quite sufficient that he
attached the effects by sequestration* so as to be enabled to assign
that security to the cautioners ; and,
2. That aa the defenders had denied their liability at the very
out*et» and so bad thrown him off his guard, they were barred
from availing themselves of any plea arising from delay in the
execution pf the sequestration, evea supposing that any such de-
lay existed.
Ob the other hand, it was maintained by the defenders,
1. That it bad been finally fixed as the law of the ease, that
they were entitled to be relieved from any part of the rent for
which Mackenzie * had not used the ordinary means of securing
* and rendering it effectual under the hypothecation ;' and there-
fore, as he had been guilty of undue delay in exercising his hypo-
thec, they were entitled to be assoilzied ; and,
2. That as it was an essential condition pf the obligation libelled
on, that he should duly exercise his right of hypothec, he could
not be relieved from the performance of that condition by any
misapprehension of the defenders as to their liability under an
obligation, the validity of which he maintained.
The Court altered the interlocutors, decerned in terms of the
libel, and foi|nd expenses due.
0
Lord President.— The parties appear to be at issue on all the ma-
terial facts of the case, and I think it should therefore be sent to
the Jury Court.
Loan Gillib8.— -The whole question is, as to the meaning of the
stipulation that Mackenzie should exercise his right of hypothec.
Loan Balgray. — Mackenzie has been extremely ill used by the de-
fenders, and I am perfectly clear that the construction which he has
put upon'the letter of guarantee is the correct one. To exercise
the right of hypothec means to apply to the Sheriff for and exe-
cute a warrant of sequestration, — the object being to create a security,
00 that it may be transferred to the cautioners. But the land-
lord is not bound to proceed to a sale. If he were so, it might be at*
tended with the most ruinous consequences, and might utterly dis-
able the tenant from paying the subsequent rents. I think that the
interlocutor of the Lord Ordinary goes too for as to what is re-
quired in exercising the hypothec, and I am of opinion that Ma$-
602 CASES DECIDED IN THE
kenzie has duly implemented the terms of the conditio* by execut-
ing sequestration. But, esto that he was bound to have gone
further, I think be has done so. Even if he had not, the letter from
the cautioners, denying their liability, forms an important ingredient
' in this case. Mackenzie was thereby thrown off his guard, and was
in so many words told, that, take what measures you choose against
the tenants, we are not liable, which left him to his own discretion.
Besides, the /execution of the warrants of sale was resisted by the
tenants, so that no blame attaches to Mackenzie.
Lord Craigie thought that the case was not sufficiently ripe for
♦ judgment, and that a further inquiry should still be made*
Lord Gillies. — I concur with Lord Balgray. This is a sublease, not
for one year, but for several years ; and as the cautioners were liable
for the whole rents, the circumstance of not selling off the whole ef-
fects, and so removing the tenant, was rather in their favour than
otherwise. A sequestration was executed, of which it was intended
to give the cautioners the benefit, if they chose to take it ; but they
did not do so, and therefore the goods were sold. They continued
liable, notwithstanding, for the subsequent rents.
Lord President. — On the law of the case I am perfectly of the
same opinion. If the hypothec were to be exercised to the utmost,
then there was no necessity for caution. The very purpose of hav-
ing caution is to obviate the necessity of having recourse to that ex-
tremity, which would bring ruin upon all the parties.
Pursuer's Authorities.— Bz\\ on Leases, 277 ; 2. Bell's Comm. 38 ; 2. Ersk. 6. 62 ;
Macmillan, Jan. 21. 1629, (3390.)
R. Roy, W. S. — J. Macdonell, W. S* — Agents.
Nov 291. H. Gordon, Petitioner. — Gordon — Lumsden.
Mrs. Jane Dunca^, Respondent. — Jeffrey — Rutherfurd.
Process— Expense*.-— A petition for recall of an inhibition on a depending action
having been refused, and thereafter the action having been abandoned, and a
second petition for recall having been presented, but no extrajudicial amplica-
tion having been made for a discharge— Held,— 1.— That such an application
should have been made, and therefore the expenses refused, but the inhibition
recalled of consent ;— -and,— 2.— That it was incompetent to recall the former
judgment, or to award the expenses of the first petition.
May 12. 1827. Shortly after the judgment pronounced (ante, Vol. V. No.277.)
2d Dm*™*. m the application at Gordon's instance for recall of inhibition used
F. by Mrs. Jane Duncan on an alternative summons of declarator of
marriage and damages for seduction at her instance pending be-
fore the Commissaries, she gave in a petition to them, praying th
her summons, which she considered defective in certain particu
might be dismissed, (which was subsequently done,) reserving to
COURT OF. SESSION; ;, 603
hereto bring a new action. Gordon then gave in a petition to this
Court, of new praying for recall of the inhibition, and also crav-
ing their Lordships to recall the judgment pronounced on his for-
mer petition, and to find him entitled to the expenses of the dis»
ucssion thereon. The Court, of consent, recalled the inhibition,
but refused, quoad ultra, the prayer of the petition, which they
held to be incompetent ; and they likewise refused to allow Gor-
don the expense of the present application, on tjie ground,
that as the diligence fell by the dismissal of the summons on the
dependence of which it was executed, it was only necessary to
register a discharge in order to clear the record, and that he had
never made any extrajudicial application for a discharge.
J. Lyon,— Finlayson and Brkmner, W. S.— Agents.
• •
J. Barbour, Pursuer. — Thomson. No. 292.
A. Grierson, Defender. — Skene — G. G. Bell.
Proce**—Accumuia£ion of Jetton* — Declarator.— The holder of a bill having raised
diligence on it, of which a bill of suspension was refused ; and having thereafter
discovered a defect in the bill not pleaded in the suspension by the debtor, but
which rendered the execution of the diligence dangerous, and having raised an
ordinary action for payment qf the bill, and thereafter a supplementary declara-
tor to have it found that he waa entitled to go on with his diligence— Held that
such declarator was competent, and that no objection lay to it as creating an un-
due accumulation of actions.
Grierson, the acceptor of a bill, having been charged for pay- May 12. 1827.
ment by Barbour, an indorsee, presented a bill of suspension, on D .
the ground that Barbour was not an onerous holder'; but he hav- Ld. Mackenzie.
ing, on a reference to oath, deponed that he was, the bill was refused. M'K.
A caption was then taken out by Barbour ; but having in the
mean time discovered that the bill was written on a wrong stamp,
and being afraid to execute it, he raised an ordinary action, con-
cluding for payment of the sum contained in the bill, and founding .
on the bill and certain letters in support of his demand. After
the record in this action was closed, it waa sisted, on a suggestion
of the Lord Ordinary, till a declarator should be raised by Bar-
bour to have it found that he was entitled to execute his caption, .
notwithstanding the defect as to the stamp, on the ground that -
this objection should have been pleaded in the suspension, and
waa now excluded as competent and omitted.
Barbour accordingly raised a declarator with conclusions to
this effect, in defence against which it was pleaded,
1. That there being already a suspension and an ordinary ac-
tion in regard to the bill in question, the declarator was objec-
«M C ABBS DECIDED IN THE
tunable, on the ground that it created an undue aocumulation of
notions ; and,
2. That the proper form of trying the validity of a diligence
or decree was to execute it, so that the party charged might bring
a suspension.
To this it was answered,
1. That the declarator was merely supplementary to the ordi.
nary action, in which this declaratory conclusion ha4 been omit-
ted; and,
t. That the validity of every right might be tried in the form
of a declarator ; and that a party who suspected that his diligence
could not be safely executed, was not obliged to run the risk of
an action of damages to ascertain whether it was valid.
The Lord Ordinary repelled these dilatory defences, and the
Court unanimously adhered.
Loan Gunlkx. — The Lord Ordinary has given no opinion on the
merits of the declarator, hut has merely found that there is nothing
to prevent the pursuer being heard on the demand there mads.
As to die first defence, it cannot be listened to; for, by die very nar-
rative of the declarator, it is evidently supplementary to die ordinary
action, the raising of which was sufficient to prevent die pursuer
going on with his diligence also. In regard to the second, the general
to|b is, that any right may be ascertained by a declarator; and Ids
not see any absurdity in a party bringing a declarator to bare it
found that he is entitled to go on with his diligence, especially when
the other party will not try the question by a reduction, or by a sus-
pension as of a threatened charge.
The other Judges concurred.
W. Dalrympls, — R. Welsh,— Agents.
No, 293* J- Wright, AdvocsUx.^tfrty-rJaneKm.
Jah*t Watson, Respondent,— if aftiwi--^- IfWeiff.
May IS. 1827. This was a question as to a semiplena probatio in an action of
«d Division, fixation* which depended on the credit given to the witnesses for
Lord Medwyo. the pursuer. The Sheriff of Lanarkshire found that the evidence
B* amounted to a semiplena probatio ; and in an advocation the Lord
Ordinary remitted simpliciter, and the Court adhered.
Campbell and Macdowall,— C. Ftsutft, — Agents.
COURT OP SESSION &&
Mrs. C. Muvro or Rose, Pursuer and Advocator.— D. of F, No. 294.
M<mcreffi^Thom#m^effrey— Skene.
G. Boss, Defender and Respondent.— Forjy*A—C<x*farti.
LtgtiimaHonr-Parent md Ould--Marriage--DomiciU.-—A Scotchman by birth,
who inherited a landed property, and succeeded to an entailed estate in Scotland,
but who settled in England in early life, making occasional visits to Scotland
far business and amusement, having, after about forty yean residence in En-
gland, had a son by an illicit connexion with an Englishwoman, and having come
four years thereafter to Scotland, accompanied by the child and the mother,
where, alter a residehce of fifteen days, he was married to her ; and having re-
mained in Scotland for about two month*, and then returned to England wMt
his wife and child, where they resided till his death— Held, in * declarator of
bastardy brought at the instance of the next heir to the entailed estate, that the
son was legitimated by the marriage of his parents.
The late Alexander Ross was bora in Scotland, in which M»7 ** *W«
country he inherited a paternal estate. In early life (about the 80 Division.
year 1770) he went to London, and settled in business as an army Bill-Chamber,
agent. In 1787 he succeeded to the entailed estate of Cromarty 0aa^Mt
in Scotland, and became a freeholder in two Scotch -counties, after
which period he occasionally visited Scotland for the purpose of
attending elections of members of Parliament,— of visiting his
friends, and of private business ; but his constant residence was
in London, where he married in 1777, and had a family of daugh-
ters. After the death of his wife, he formed an illicit connexion
with Hiss Woodman, an Englishwoman, by whom he had a son,
the present defender, born in London in 1811. In spring 1815,
Mr. Boss, accompanied by Miss Woodman and his son, came
down to Scotland, with the intention of entering into a marriage
there for the purpose of legitimating their son. They arrived at
Newhaven on the 25th of May of that year, and having lived
there in lodgings for about a fortnight, they were, on the 10th of
June, regularly married by the clergyman of the parish, accord-
ing to the forms of the church of Scotland. They then made a
short tour in the north of Scotland, in the progress of which they
visited Mr. Ross's estate of Cromarty, and resided at his house
there for a few weeks, during which period he introduced the
lady to his friends as his wife, and the defender as his son. They
left Scotland on the 27th of August, and returned to London,
where they continued to reside until the period of Mr. Ross's
death, which happened in 18120. On this event, his son, the de-
fender, took out a brieve from Chancery, for the purpose of hav-
ing himself served lawful heir of tailzie to his father in the estate
of Cromarty ; whereupon the pursuer, Mrs. Rose, who was the
606 CASES DECIDED IN THE
next heir of entail to that estate, and entitled to succeed on the
failure of Mr. Ross without lawful issue male, raised an action
before the Commissary Court, setting forth that she was nearest
lawful heir of tailzie, and that the defender had taken out brieves,
intended to interrupt and interfere with her in establishing her
right to that estate ; and concluding to have it found that the de-
fender was born a bastard in England, and that he * still is held
* and repute a bastard, and that therefore he is incapable of law-
* ful succession, and has no title to any of the civil rights compe-
* tent to lawful children.9
The Commissaries pronounced an interlocutor, which was ac-
quiesced in by the parties, finding that the defender was the son
of Mr. Ross and Miss Woodman ; but, being equally divided in
opinion as to the legitimation, judgment passed, according to the
rule of that Court, in favour of the defender, who was accordingly
assoilzied from the declarator of bastardy.
The pursuer having thereupon brought the cause before this
Court by advocation, it was ordered to be heard before the whole
Judges.
Argued for ike Pursuer. — The only question before the Court
is one of status. No question as to the right to a real estate could
be competently tried in the Commissary Court ; and although the
cause of this action originates in a competition for the estate of
Cromarty, which incidentally depends on the status of the de-
fender, this question of pure consistorial law, competent only in a
(Consistorial Court, cannot be affected by that circumstance. It
would be a most dangerous doctrine to allow the law of status to
depend on whether the party's father has a landed estate or not.
Suppose there were two sons, could the circumstance, that the suc-
cession to a Scotch estate would be regulated by the decision, in-
duce the Court to make the eldest lawful, and the second a bas-
tard., or the same person lawful as to a landed estate, and a bas-
tard in respect to moveables left by his father to his eldest lawful
son, there being confessedly no peculiar rule as to succession to
landed estate, different from succession to moveable estate ? This
cannot be maintained, and, this case must therefore be considered
as it is in the summons, an action regarding personal status, with-
out reference to the circumstances which may incidentally follow
the result.
It is an admitted fact, that the defender was once a bastard,
and it therefore lies on him to establish that he has been made
legitimate by the subsequent marriage of his parents. The cir-
cumstances of the case are simple, and the parties do not differ
materially in regard to them ; but it is of importance for the pur-
COURT OF SESSION. 601
suer to observe, that it is stated in the defender's Case that. the
sole object of the late Mr. Ross in coming to Scotland was to
legitimate his .child, and consequently that there was no purpose
of taking up his residence here.
By the law of England, there can be no legitimation per sub*
sequens matrimonium ; and there being here, therefore, a conflic*
tU8 legum, we must look for some principle for determining which
law is to rule the case.
It is clear that it cannot be determined by the forum in which
the question comes to be tried, although this seems to have
weighed strongly in the mind of one of the Judges in the Com-
missary Court ; and the first point truly of importance to be as-
certained is the domicile of Alexander Ross at the birth of his
child, at his marriage, and at the period of his death. The domi-
cile here in question is totally different from that which is suffi-
cient to found jurisdiction against parties in our Courts ; it is the
place of constant residence, ubi larem summamque fortunam
constituerunt, and according to the law of which moveable suc-
cession ab intestato would be governed ; and on numerous de-
cided cases there cannot be the slightest doubt that Ross's fixed
domicile was in England, by the law of which his moveable suc-
cession must have been regulated It is incumbent on the de-
fender to show some definite rule and distinct principle by
which his legitimacy is to be made out, and he must necessarily fix
either on the lex loci contractus, the lex rei sitae* or the lex domi-
cilii of the parents. The defender has deemed it enough to rest
his case on the lex rei sitae. But this is a question of status ; the
right of inheritance is merely an accidental circumstance, and the
judgment must be the same as if no land depended on it, or as if
the estate had been in England. Suppose there had been no
estate at the date of the marriage, but only acquired afterwards,
this subsequent acquisition could have had no influence on the
legal effects of the prior marriage, though a question of inherit-
ance would depend on the decision, as it does here ; and indeed,
if any point has been fixed by the case of Sheddan, it is this, that
the situation of the property claimed cannot be the rule. In like
manner, in the Strathmore case it was assumed that there could
be no claim to the Scotch estate ; and the claim of aliment made
in this Court proceeded on the assumption of Bowes's illegitimacy.
And in this case, too, we have it on the authority of the Lord
Chancellor, that the case of Sheddan was not decided at all on the
point of alienage. The lex rei sitae, therefore, cannot be the rule.
As to the forum originis of the father, it can be of no weight
in competition with his established domicile ; and indeed it has
608
CASES DECIDED IN THE
been lately held in the case of Pedie v. Grant, that it does not even
found jurisdiction. The forum originis, as well as the other cir-
cumstances founded on by the defender as keeping up a connexion
with Scotland, may all be important ingredients in ascertaining
the domicile where that is disputed ; and a man may perhaps more
easily regain his original domicile, than acquire one elsewhere.
But where the domicile is fixed beyond dispute, as it is here, then
the forum originis, or the circumstances of mere connexion with
a country, can be of no consequence, as their only use is to deter-
mine which is the true domicile when that is uncertain ; but, the
domicile being fixed, these circumstances cannot in the least afiect
the question of status.
But it is said that the marriage was contracted locally within
Scotland ; and this is in truth the only circumstance to distinguish
this case from those of Sheddan and Strathmore, in the latter of
which, although that point was left open by the Lord Chancellor,
it was done in a manner which by implication excludes the de-
fenders plea. Though the marriage here was in point of solemnity
celebrated in Scotland, and so, as to its form, is effectual in both
countries; yet, as to its operation, it must be held to be an En*
glish marriage, being contracted by parties domiciled in England,
and subject to the law of England, hut coming to Scotland, not
to get .the benefit of the ScottishJ&rm of solemnizing the mar-
riage, but of the Scottish rule of law as to its effects. All the con-
sequences of the marriage were to take effect in England ; and
that it is not correct to say that the legal consequences of marriage
depend on the place where it is entered into, is established by the
divorce cases in 1816, where marriages solemnized in England
were found to be dissoluble in Scotland, notwithstanding the law
of the place whefe they were contracted, which declares them in*
dissoluble. If a Scotchman domiciled in Scotland marry in En-
gland, all the legal consequences attach to the status according
to the law of Scotland, as the communion of goods, jus relicts,
fee. And the same holds in England as to Gretna Gre&t mar-
riages; the effects of such marriages take place according to the
law of England, where the parties are domiciled,— and not the law
of Scotland, where the marriages were contracted. The effects
are all regulated by the law of the man's domicile ; and so, if an En-
glishman marry in England, then come to Scotland, and be there
domiciled, his estate and effects will be regulated, in regard to the
by the law of Scotland. Marriage is u>
ilium, and effect is always given to iU not
place where it is contracted, but of
dfoctis to be given to it; and it
COURT OF SESSION. 009
is on this principle that the Scotch divorces of English marriages
are allowed; for the divorce cannot have place when the parties
are not domiciled in Scotland. Divorce being the damage for
non-implement of the contract, the remedy must be given ac-
cording to the law of the country where it comes to be imple-
mented, not of that where it has been contracted. The French
case of Conti is one exactly in point to this. It was there held
that the lex loci contractus did not rule the cafte, but that the
effect of the marriage in legitimating the offspring was to be re-
gulated by the lex domicilii of the paretots ; and in our own case
of Strathmore, while the Lord Chancellor no doubt reserves the
question of a marriage contracted in Scotland, he couples that re-
servation with the further quality of the domicile also being in
Scotland.
It thus appears that the rule of judgment cannot be found in
the place of the situation of the estate— of the father's birth— or of
the marriage ; but it is to be found in the domicile of the parents*
either at the birth of the child, at the marriage, or subsequent to
the marriage. There is no occasion to prejudge the question,
whether the domicile at any one of these periods would be suffi-
cient, because in the present case the domicile was English at
all of them. If the domicile were in Scotland at the birth and
die marriage, the legitimacy would be clear, and nothing could
alter the status. If the domicile were in Scotland at the mar-
riage, but in England at the birth, it would still be a doubtftd
ease. But hoe every point is against the defender, as there never
was a domicile in Scotland from the time his father first left it
If, again, the place of birth be taken as the rule, then the de-
fender was born illegitimate, according to the domicile of his
parents at that period, and he is incapable of bang legitimated
by the law of England. All the foreign jurists who write on
general law are agreed that in questions of proper personal sta-
tus, where there is a conflsctus kgum, the law of the domicile
prevails ; and where once the personal status has been established
in the place of the party's domicile, it follows him all over the
world, and cannot be altered without a violation of the principles
of international law. Perhaps it will be contended that there may
be * double status,— one legitimate, and the other illegitimate ; but
it is scarcely necessary to go into this, as here there was only one
domicile. It will not be majntawri that there is such a legiti-
macy here as would have enabled the defender to take his father's
real Estate in England, or even his personal estate ab intestate.
It i* AaisL, however, that a double status has been sustained in En-
gbad in the case of Birtwhistle. That, however, seems doubtful,
COS CASES DECIDED IN THE
been lately held in the case of Pedie v. Grant, thai it does not even
found jurisdiction. The forum originis, aa well as the other cir-
cumstances founded on by the defender as keeping up a connexion
with Scotland, may all be important ingredients in ascertaining
the domicile where that is disputed ; and a man may perhaps more
easily regain his original domicile, than acquire one elsewhere*
But where the domicile is fixed beyond dispute, as it is here, then
the forum originis, or the circumstances of mere connexion with
a country, can be of no consequence, as their only use is to deter-
mine which is the true domicile when that is uncertain ; but, the
domicile being fixed, these circumstances cannot in the least affect
the question of status.
But it is said that the marriage was contracted locally within
Scotland ; and this is in truth the only circumstance to distinguish
this case from those of Sheddan and Strathmore, in the latter of
which, although that point was left open by the Lord Chancellor,
it was done in a manner which by implication excludes the de»
fender's plea. Though the marriage here was in point of solemnity
celebrated in Scotland, and so, as to its form, is effectual in both
countries; yet, as to its operation, it must be held to be an En*
glish marriage, being contracted by parties domiciled in England,
and subject to the law of England, but coming to Scotland, not
to get the benefit of the Scottish/frm of solemnizing the mar-
riage, but of the Scottish rule of law as toits^ecto. AUtheoocw
sequences of the marriage were to take effect in England ; and
that it is not correct to say that the legal consequences of marriage
depend on the place where it is entered into, is established by the
divorce cases in 1816, where marriages solemnized in England
were found to be dissoluble in Scotland, notwithstanding the law
of the place where they were contracted, which declares them in*
dissoluble. If a Scotchman domiciled in Scotland marry in En-
gland, all the legal consequences attach to the status according
to the law of Scotland, as the communion of goods, jus relictse,
fee. And the same holds in England as to Gretna Qre&i mar-
riages ; the effects of such marriages take place according to die
law of England, where the parties are domiciled,*— and not the law
of Scotland, where the marriages were contracted. The effects
are all regulated by die law of the man's domicile ; and so, if an En-
glishman marry in England, then come to Scotland, and be there
domiciled, his estate and effects will be regulated, in regard to the
interests of the spouses, by the law of Scotland. Marriage is in
fact a contract juris gentium, and effect is always given to it* not
according to the law of the place where it is contracted, but of
the domicile of the parties where effect is to be given to it ; and it
COUBT OF SESSION. 009
is on this principle that the Scotch divorces of English marriages
are allowed ; for the divorce cannot have place when the parties
are not domiciled in Scotland. Divorce being the damage for
son-implement of the contract, the remedy must be given ac-
cording to the law of the country where it comes to be imple*
roented, not of that where it has been contracted. The French
case of Conti is one exactly in point to this. It was there held
that the lex loci contractus did not rule the case, but that the
effect of the marriage in legitimating the offspring was to be r^.
gulated by the lex domicilii of the parehts ; and in our own ease
of Strathmore, while the Lord Chancellor no doubt reserves the
question of a marriage contracted in Scotland, he couples that re-
servation with the further quality of the domicile also being in
Scotland.
It thus appears that the rule of judgment cannot be found in
the place of the situation of the estate— of the father's birth— or of
ike marriage ; but it is to be found in the domicile of the parents,
either at the birth of the child, at the marriage, or subsequent to
the marriage. There is no occasion to prejudge the question,
whether the domicile at any one of these periods would be suffi-
cient, because in the present case the domicile was English at
all of them. If the domicile were in Scotland at the birth and
the marriage, the legitimacy would be clear, and nothing could
alter the status. If the domicile were in Scotland at the mar*
liage, but in England at the birth, it would still be a doubtful
case. But here every point ia against the defender, as there never
was a domicile in Scotland from the time his father first left it.
If, again, the place of birth be taken as the rule, then the d»>
fender was born illegitimate, according to the domicile of his
parents at that period, and he is incapable of being legitimated
by the law of England. All the foreign jurists who write on
general law are agreed that in questions of proper personal sta-
tus, where there is a conffictus kgum, the law of the domicile
prevails ; and where once the personal status has been established
in the place of the party's domicile, it follows him all over the
world, and cannot be altered without a violation of the principles
of international law. Perhaps it will be contended that there may
be a double status,— one legitimate, and the other illegitimate; but
it is scarcely necessary to go into this, as here there was only one
domicile. It will not be mamtainnri that there is such a legiti-
macy here as would have enabled the defender to take his father's
real estate in England, or even his personal estate ab intestate.
It is said, however, that a double status has been sustained in En-
gland in the case of Birtwhistle. That, however, seems doubtful,
610 CASES DECIDED tN THE
as the decision appears to have proceeded on a peculiarity of the
law of England as to succession to real estate, (independently
of mere legitimacy,) that the person to succeed must be born in
wedlock. The absurdities which would result from such a doc-
trine as that of a fluctuating status render it quite inadmissible,
while, on the other hand, the law of the domicile can create no
real difficulty. There have doubtless been nice cases as to what
was the domicile of a party, but still there are always circum-
, stances sufficient to determine it.
- In the present case, the domicile of the parents in England at
the time of the defenderVbirth creates an obstacle to his legiti-
-ttation, which, when joined to the domicile being also in En-
gland at the period of the marriage, and subsequently till the
father's death, makes it perfectly clear that his legitimation per
subsequens matrimonium was impossible.
Arguedjbr the Defender. — It has been said that this is an abstract
question of status, not to be affected by any subsequent consequence
'which may result from the judgment ; but it is in truth virtually
a competition for the estate of Cromarty, and a question as to the
capacity of the defender to inherit. The action is not a declara-
tor of legitimacy by Ross, but of illegitimacy by Mrs. Rose, who
has no title to insist in such an action, except on the ground that
his legitimacy might stand in the way of her right to that estate,
and on this she founds her title to insist in the action. The ques-
tion at issue is, Did Alexander Ross, by his marriage in Scot-
land, legitimate his son to the effect of inheriting a Scotch landed
estate ? It is not a question of status in regard to a mere peregrinus
unconnected with Scotland, except as being within its territory ;
it is in regard to a subject and citizen of Scotland possessing a
landed estate here, and exercising the corresponding duties. It is
Asked, however, Of what use are these circumstances, if the domi-
cile be in England ? They are of importance, as showing that
this is not a case of parties coming to Scotland to evade the law
of England, but of a party having a landed estate in Scotland
coining there for the laudable purpose of enabling his son to ac-
quire a Scottish right, and not to take it back to England. It is
not a question as to the power of testing in moveables, but as to the
succession to an heritable estate— not as to status imported from
another country, but whether the status of the parents, after the
performance of an act in this country, had an effect on the status
of their issue. And although, if we have no authority for determin-
ing the question in the law of Scotland, we must look to that of
other countries, yet it appears that there are' principles in the law
COURT OF SESSION. 611
of Scotland sufficient for the decision of the case. It is laid down
by our institutional writers, without any restriction, that marriage
between parents legitimates children previously born, without
allusion to the place of birth or the domicile of the parents, and
under no limitations but those of mid impediments, as a marriage
subsisting at the time of the birth, or intervening between that and
the marriage. It is said that there is a third, viz. the status im-
pressed on the child at its birth in England ; and this renders it
' necessary to say something on the foundation of mid impediments.
As to children born in incest, there can be no marriage ; and as to
adulterous children, a rule of policy prevents their legitimation,
on the ground that it would hold out inducements to crhne de-
structive to society, and to (he peace of families. Then, as td in-
tervening marriage, it is said that there is a fiction of law which
supposes a marriage prior to the birth. The Novell of Justinian,
however, says, that an intervening marriage shall not bar legitima-
tion ; and it was the Canon law which introduced the fiction, to
prevent the children of the intervening marriage being deprived
of their just rights. In Holland the Canon law on this point is
not received. In France the intervening marriage does not bar
the legitimation; but the children legitimated are held, quoad their
rights, as younger than those of the intervening marriage. In
Scotland there is no authority as to how the matter stands, and
the question is still open, although certainly we would not allow
the rights of the children of the intervening marriage to be de-
feated. It cannot therefore be said that we have adopted this
fiction ; but, admitting the fiction, still the birth and residence in
England in the present case create no mid impediment; for
although parties cannot marry in England, except in facie ecclesiae,
there is no admission in point of fact that Ross or Miss Wood-
man were never in Scotland or in France, or that they are not
Quakers, who are permitted to marry by consent ; so that 4 mar-
riage was still possible, and it is only the impossibility of mar-
riage that can exclude the fiction. What, then, are the grounds
on which legitimacy is denied to this child ? It is said that there
are- no grounds adduced by him in support of his legitimacy ;
but the onus lies on the other side to point out the principle of
bastardy. There are, however, clear principles for supporting
legitimacy on the part of the defender.
There are sonie principles which are admitted all over the
world. One of these is, that, in regard to intestate succession to
moveables, the law of the domicile prevails; another is, that
deeds in reference to moveables are good, if according to the
form of the countries where they are executed. But, in regard to
01* CASES DECIDED IN THE
seal property, the State having an interest m it, the lex ret ate
is the universal rule aa to transference and succession. On the
other hand, it is greatly disputed what law is to regulate personal
status, and whether a status once impressed by the law of the
domicile is indelible, and follows the person wherever he goes.
On the other side, all cases of personal status, being indelible,
were given up, except marriage and legitimacy ; and so the whole
of the authorities, who all carry it much further, must be aban-
doned. ' But, even as to these, the rule produces the most absurd
consequences. For instance, in Trinidad, now belonging to Great
Britain, the law of Spain prevails, and by it a child may be legi-
timated by a public deed executed by the father. Now, suppose a
Scotchman settles there, has issue by a black mistress, and exe-
cutes a deed legitimating his son, could he be served heir to an
estate in Scotland ? It is impossible ; and though this will neces-
sarily produce a fluctuating status, yet the only thing stated on the
other side is, that inconvenience would result from it ; but this
teust necessarily occur in the conflict of different laws, and it will
never be very great, as the precise limits are known ; while, if the
domicile be adopted aa the rule, the inconvenience is increased in
a great degree ; for there is nothing so difficult as to fix the domi-
cile, if there be no evidence of intention. And this brings us to
the question of Ross's domicile, as to which there is really no
evidence' what was his domicile at the time when he was in Scot*
land, for evidence of intention then would take away the effect, of
all* die previous circumstances; and it is this matter of intention
which surrounds the question of domicile with difficulties, aod
shows that it would be quite absurd to make, the domicile of in*
testate succession the regula regulans of cases of this nature.
But there is another principle not subject to audi difficulties,
vis. that every question aa to landed succession should depend en
the lex rei sitae, because the State has the chief interest in the
land ; and is this to be disregarded in the most important question
of all in reference to land, — the capacity to inherit, — because there
is a previous question of status P It is hot denied on this side that
status is impressed by the law of the domicile of intestate succes-
sion, and that ft accompanies the person wherever he goes. When
be oonies to Scotland, he is received like all other Scotchmen in tfae
same situation. If he come an Eriglish bastard, be is a Stioteh
bastard ; but be is so, subject to the law of Scotland, which will
apply to him as to a Scotch person in the same situation so that
he is liable to be legitimated by the subsequent marriage of his
parents. If the law were otherwise, the consequence would be,
that & person would import not only his status, but the htwft which
COUHT OF SESSION. 613
attach to that status in his own country ; but there is no authority
tor such a doctrine. He imports his status into the country to
which be conies ; but he is subject to the law of that country, and
every act done by him there must change his status, in the same
way as would Lold as to a party formerly living in the country.
This is the principle of the divorce cases in 1816. < Forbes and
Levett were domiciled in England and Ireland; but the argument
prevailed, that though they brought their - status into Scotland,
the act of adultery committed in Scotland must be followed by the
consequences of die law of that country. Only two of the Judges
expressed an opinion contrary to this, and they proceeded on
the ground that there was a fradd against the English law'; but
the connexion with Scotland in this case shows that here there was
no such fraud. These divorce cases were rested on policy and the
manners of this country, and the same reasons apply equally to
the case of legitimation as to that of divorce, and rule this, case
on the principles of equity. It is said, however, that in these
cases the lex loci contractus was disregarded. The argument
founded on this is fallacious. The status was impressed in En-
gland, but the act of adultery being in Scotland changed the sta-.
tus, or rather gave a capacity of effecting a change ; and in like
manner, here, the status was impressed by the birth in England,'
but it is changed by the act of marriage in Scotland. The' cor-
rect phrase is, not that the lex loci contractus rules; but that locus
regit actum. It is contended, however, that the effects of mar-
riage are regulated by the law of the place where the parties
mean to reside, and that the marriage here, therefore, must be
held to be an English marriage. But it is to be observed, that
marriage is not only a contract, but an institution. Its effects as
a contract may be stipulated, and accordingly the patrimonial in-
terests which are its effects as a contract are regulated by the pre.
sumed consent inferred from the place where the parties are to
live. On the other hand, the effects of marriage as an institu-
tion are independent of the intention or will of the parties, and
these follow according to the law of the country where the mar-
riage takes place. It therefore affords a plain answer to the
cases of Sheddan and Strathmore, when quoted as precedents here,
that the act of marriage in these cases was not committed in Scot-
land. The French case of Conti is not one on which much re-
liance can be placed ; but it supports one principle maintained on
this side, that, as to real estate, the lex rei sitae rules. As to the
English case of Jolly, where a man- married in England, and di-
vorced in Scotland, was convicted, of bigamy on a second mar-
riage, it seems to have beep understood that there had been collu-
voi,. ▼• * *
614 CASES DECIDED IN THE
sion in obtaining the divorce. la- the Case of Birtwhistle, the
judgment of the King's Bench was unanimous, and it supports
the rule of the lex rei sitae. Then, as to the case of Sheddan,
there was a specialty in so far as a question of alienage was in*
volved ; but besides, the marriage being in America, where legiti-
mation per subsequens matrimoniura is not allowed, the conse-
quences necessarily followed according to the law of the country
where the act was performed. The same distinction also held in
the caae of Strathmore ; and aa the Lord Chancellor expressly
reserves the question, if the marriage had taken place in Scotland,
it cannot be quoted aa an authority in this case; and there being
therefore no precedent against the defender's plea, and no prin-
ciple to defeat the effect always given to a Scotch marriage, he is
entitled to have the judgment of the Commissaries in his favour
affirmed.
The Second Division having required the opinions of the other
Judges in writing, written opinions were accordingly returned,
three of which (those of Lords President, Cringletie, and Eldin)
were against the legitimacy, but the others being in favour of the
judgment of the Commissaries assoilzieing the defender, and the
Judges of the Second Division unanimously concurring with these
opinions, the pursuer's bill of advocation waa refuse^.
The consulted Judges returned the following opinions.
Lord President.— In considering the very difficult and important
question which occurs in this cause, extras* cases may be put,
which are very revolting to one's feelings, and therefore k is the
more necessary to endeavour to discover some clear priociple which
will solve the question.
On the one hand, if we suppose a Scotchman and Scotchwoman,
both domiciled in Scotland, to have connexion, in the course of
which the woman becomes with child, but is delivered of that child
in the course of a temporary jaunt or visit in England, it does seem
to be very revolting to say that such child shall not be legitimated
by the subsequent marriage of the parents in Scotland.
£ contra — If we suppose an* English man and woman, both do-
miciled in England, to have an illicit connexion, the fruit of which
is a child born in England, and the parties continue So be domiciled
in England for thirty or forty years, during all which time the child
is illegitimate, it does seem to be equally revolting to say that the
'parents, by stepping across the border, sad marrying in Scotland,
should thereby legitimate thai child.
But I think there is a clear principle of the law of Scotland ap-
plicable to this ease, whatever may be said of the above extreme
cases, or of. atbera which may he put-
I hold the facte in this case, as applicable to the status of the par-
ties in other respects, to be clejir.
COURT OF SESSION. at
Imo, The defender we* born end domiciled* in England down to
the marriage ef his parents.
Sdo, His mother, his only legal parent, was as Certainly a born
and domiciled Englishwoman at the date of her child's birth, and at
the date of her subsequent marriage j and she has continued to be
domiciled in England ever since.
Mo, As to Alexander Ross, the father of the defender, lie wns
bom a Scotchman • and, by inheriting and succeeding to heritable
property in Scotland, he became subject to the jurisdiction of its
Courts of Lew, though it required a particular form of citation to
bring* Use into Court; but in every other respect he was a domi-
ciled Englishman. He had resided there, and there only, for 40 or
50 years. His risks to Scotland were not frequent, and of very
uhort deration ; and it does not appear that be had any establishment
of servants in Scotland. He carried on a great business in England.
In short, to every effect whatever (unless the present case shall be
held to be an exception) he was domiciled in England at the birth
of the child— at hie marriage— and from that time to his death.
These are the circumstances of this case in reference to the per-
sonal condition of the three principal parties ; and, by the law of the
domicile of all of them, the bastardy of the defender was indelible
and irreversible.
Now it appears to me that this directly points at a principle of
the law of Scotland sufficient to rule this case ; for whenever, by
the law of Scotland, bastardy is indelibly fixed on a child, die sub-
sequent marriage of the parents doe* not legitimate it. This is un-
quoBtienaMy the case, if the child be born in adultery, whether of
the tether or mother. I hold it also to be the case, though some
lawyers doubt it, if the father or mother have Entered into an inter-
mediate marriage with a third person. But as to the first case of
an adulterous bastard, it is quite fixed that such bastardy is indelible
and irreversible, and that the subsequent marriage of the parents
does not legitimate such child.
Now it appears to me that, by the comitas gentium, we are bound
to give the same effect to indelible bastardy by the law of England,
which we do to the same state by the law of Scotland. Toe first
question we ask in Scotland is, Was the child born under such cir-
cumstances as to be in a capacity to be legitimated per subsequent
natrimonfamr? If the answer be in the negative, then legitimacy will
not follow. And I am of opinion, that if the same question be put
as to a chfld born in England, and the answer be also in the negative,
(as it must be m the circumstances of this case J the result ought to
be the same.
I have carefully considered all the authorities produced on both
sides. Many of them push ikeir argument too far, and many of them
are founded on metaphysical subtleties ; and none of them except
one touch this identical case. But there is one wMch fa directly in
2b2
€16 CASES DECIDED IN THE
, • point, and which is grounded on the principle I have laid doWn. It
is the opinion of Boullenois, who is said to be a French lawyer of
eminence, in which country legitimation per eubsequens matrimoniiim
is recognised as amply, or I believe even more so, than in Scotland.
He says, vol. i. p. 62 : — ' J applique encore cette decision a an
' enfant Anglois ne en Angleterre d'un concubinage, et dont lea
< pere et mere Anglois aeroient venus demeurer en France, et y
' auroient ete maries sans a'y etre fait naturalises, parce quetaot
* veritablement etrangers, et comme tela aoumia aux loix d'An-
' gletenre, leur enfant ne peut etre, suivant ces. loix, batard en An-
* gleterre de naissance, et etre regarde comme legitime en France,
i parce qu'il porte partout l'etat et la condition dont il est par les
' loix de sa nation.' This is the very case ; and it appears to me to
be solved on the only principle which will carry ua through this case,
and even through the extreme cases which I have supposed. •
. / 1 cannot lay any stress on the circumstance that Alexander Ross,
the father, was proprietor of a landed estate in Scotland ; because
the very same question might have occurred in a case of moveable
succession, or even as to a landed estate of a third party, to which
Alexander Ross and the heirs of his body were substitutes, and the
succession to which had not opened till after his death. And I bold
it to be quite clear — at least it is my decided opinion-— that a differ-
. ent decision could not be given in those cases from what must be
• given in this. , •
If this defender be legitimated by the law of Scotland, he mutt
be so to every purpose, and must take every right to, which a kgiti-
, mate child is entitled by our law. . He cannot take the estate of his
father, and not that of a third party, to which he may be equally
heir ; and he cannot take a landed estate, and not be equally entitled
to moveable property*
. Lqbd Cringletie.—I accede to the foregoing, so for as it goes. My
own opinion is founded on the reasons in it, and some others in, ad-
dition and explanation of the above*
It is unnecessary to prefix any statement of the facts out of which
this question arises. . These will be well known to those to whom
the following is offered.
On the merits of this case,. I have bestowed all the attention the
. novelty and importance of it certainly deserve ; and the following are
my ideas : .
We have one point completely fixed by the cases of Sheddan and
( the Earl of Strathmore,—- that a man domiciled in England, or in
America, having an illegitimate child by an English or an American
woman, marrying in either of these countries, and dying domiciled
, there, does not by such marriage legitimate the child.
The only difference, then, in this case is, that the late Mr. Rosa,
• who, being domiciled in England, had an illegitimate son by an, En-
COURT OF SESSION. 617
t
glishwoman, domiciled then, came to Scotland, and married the
woman there ; and therefore the only question seems to me to be,
whether die place where the marriage waa celefamted can make
any difference on the rights of the child. I think that jurist* have
gone too far, when they say that the law of domicile impresses on
die subject qualities which are inherent to, and never quit him, in
whatever place he may go to. But still it appears to me to be quite
clear that the law of the domicile rules this case.
1. 1 am of opinion that the locus originis is a mere circumstance,
and has no other effect than to cast the balance where other circum-
stances are equally weighty. A man born in Scotland, going to
England, and being domiciled there, derives no right nor privilege
whatever from his birth ; and vice vera! with an Englishman Of
this we have a decided instance in the above-mentioned cases of
Sheddsn and Stratfamore, in which it was ruled that a man domi-
ciled where English law prevails, having natural children by a woman ~
whom he afterwards marries in the same country, cannot thereby
legitimate the children. 2. If either of these persons marry in
Scotland, or in England, or in France, he derives no right whatever
from the locus contractus. The forms of the country where the
marriage is celebrated must be observed in order to constitute a
marriage, but that is aH; when they return home, the law of the
domicile will govern all the effects of the marriage. An English
couple marrying at Gretna Green, and returning to England, obtain
none of the privileges of Scotland, because they happen io marry
there. On the contrary, suppose a domiciled Scotchman and woman,
having natural children, to take a jaunt to England, merely as a trip
for pleasure, and to marry there, I cannot for a moment doubt that
such marriage would legitimate the children, because it would only
call forth or produce a consequence belonging to the man and woman
and children from the law of their domicile, which was dormant,
and required only an actus solemnis to promulgate and give it birth ;
and this seems to have been the principle on which the French- case
of Conti was decided by the French Courts. In the same way,
imagine that an English man and woman domiciled in England, and
having natural children, come to Scotland, marry there, and return
directly to England — I have not a conception, and indeed I have not
heard it pleaded, that by such a marriage these persons could legi-
timate their offspring. From these premises I draw these conclu-
sions : 1st, That the locus originis, in a question like the present, is
of no importance ; 2d, That the place of the marriage is of no im-
portance ; and, 3d, That it is the law of the domicile that must govern
all the consequences arising from marriage ; and that the law of the
domicile of the mother must regulate the status and privileges of her
natural children. Now I consider it to be admitted that the late
Alexander Ross, though born in Scotland, went to England at an
early period— that he became domiciled there— that be conrioued
618 CASES DECIDED IN THE
to be so during his whole life-r-and that hfl 4iftd domiciled there.
In that situation, hit being bom a Scotchman ieof inconsequence—
iiis having an estate hare is of aa little, farther than to constitute
jurisdiction of JSeotoh Courts over him, to the extent of the value of
. that estate; but it did not make him a domiciled Scotchman* Hie
having an eatate here did not constitute Scotland aa the epot * ubi
/ larem, penatee, rerum at fortonajum euarum aedem eanetituit unde
4 non ait discessurus, ai nihil avocet; unde cum ptofeetua eat, pcre-
< grinari videtur, quod ai radiit peregnnari jam dealitit.'—^Cod- Lib.
7.De Incolie.) I hold tbia to be the true definition of a domicile, I
bold that England wee the eeat of Mr. Ross's fortunes ; and that, when
he came to Scotland) he was travelling for a certain purpose, * peregri-
nari viaua eat »' end when he returned to England, ' peregrinarideatitit.v
But further, aa idea occurs to me which waa not mentioned at
the pleading; and it ia thia, that natural children do not belong to
the reputed lather, nor do they take their domicile from him. They
belong to the mother, whoae domicile ia theirs, and whose eettle-
taent, ia case of poverty, is theirs. Now, the defender of thia action
waa born in England of an Englishwoman domiciled there, and
acquiring all hia rights and all his disqualifications from her* By the
law of England, he bad no right to be legitimated by the aubeequent
mafriage of hia mother to hia reputed lather ; and consequently the
origin of Mr. Rosa, or hia having an eatate ia Scotland, la nothing
to the purpose in a question of statue of the defender, who ia En-
glish by birth aria* by domicile ; in proof of which, it must be con-
ceded, that if the marriage had taken, place in England, it would
have had no effect in legitimating the defender That ia a point not
to be disputed after the cases of Sheddan and Lord Strathmore, who
were both Scotchmen. What difference, then, can it make, that the
marriage waa in Scotland, when the woman and her child brought
with them the disqualification* attending on their domicile? The
defender aaka two things, via. let, That be ia to enter Scotland as
an Englishman, and to become a Scotchman; 2d, To become a legi-
timate Scotchman. Put the case that the defender had been born
of a Frenchwoman domiciled in France, in which oaae the child
would have been a Frenchman; ia it possible to allow that the re-
puted father could have brought the mother to Scotland, and, by
marrying her, legitimate the child, to the effect of enabling him to
succeed to Scotch landed property? No; be could not have dona
so; for although, by the law of France, legitimation per aufaaequens
mawimonium ia allowed, yet the stain of alien to Britain would have
adhered to the boy from hia birth. And in the same way, though
the defender waa born a British subject, yet the diequolifieajioo to
be legitimated attached to him at hia birth cannot be removed
I think that Lord Redesdele'a idea in the case of Sfaeddejaie comet,
and equally applies to thia one, that the law of England touched the
defender at his birth; and the retrospective cfauacter of the law of
COURT OF SESSION. 616
ScDtJtod oould not alter bie «tftttw. I think that it i* a (tedded point
-that tbe defender could not bate been legitimated by bis reputed
fctber marrying bis mother in England ; tbat tbe place of celebrating
a marriage b of no importance Whatever in governing tbe effects of
tbat marriage ; and consequently nothing appears to me to be clearer
than that tbe circumstance of the htte Alexander Ross haWng mar-
ried in Scotland can bate no other effect than if tbe marriage bad
been celebrated in England. We see tbat legitimation per subsequens
matrimonium is part of the lair of France. The late Mr. Ross might
bare, gone there and married ; but would that bare any more effect
than if be bad married in England ? I think it would not.
The law of legitimation per subsequens matrimonium is certainly
part of the law of Scotland, and it is no part of my province to alter
it ; bat in Cases of difficulty I do not think that an institution en-
couraging base morals is entitled to any favour leading to a liberal
interpretation.
liOttDs Mackenzie and Mkdwyn— -In this case brieves have been
purchased from Chancery, both by the pursuer and the defender, to
take ap the succession to the estate of Cromarty. But as the* pur-
suer can be entitled to succeed only in case the defender be incapable
of succession, as being a bastard, tbe parties have stopped short to
try that question under the present declarator of bastardy at. Mrs.
Rose's instance in the Commissary Court, which appears the proper
form for doing so.
The points of law agitated in this case are new, and attended with
difficulty as well as importance. But, on the whole, we are of opi-
nion tbat tbe judgment of the Commissaries ought to be sustained,
by dismissing the advocation.
The principal grounds of this opinion We shall endeavour to ex-
press briefly, without resuming at length the circumstances of a case
in which there is not much dispute regarding tbe facts, and on which
many opinions are to be given* .
We think it clear that legitimation per subsequens matrimonium
is a general rule of tbe law of Scotland, and therefore tbat tbe de-
fender must be held to be legitimated by the marriage of his father
and mother, which took place in Scotland, unless sufficient reasons
* can be assigned why his case shall be taken out of tbat general rule.
We have then to consider the grounds attempted to be maintained
to this effect by tbe pursuer of the declarator of bastardy.
(1.) It has not, We think, been argued as a reason why legitimation
per subsequens matrimonium should be denied to children conceived
in England, tbat the concubinage and marriage must be taken to-
gether as one course of action constitutive of legitimate filiation,
and of which the whole must take place under the law of Scotland.
And we do net think this could have been argued with any effect ;
for such an argument must rest, oh tbe idea that the law of Scot-
land regards concubinage with some favour or toleration more than
620 CASES DECIDED IN THE
the law of England does, and holds out, as an inducement to parties
for forming such a connexion,, the possibility of afterwards legitima-
tizing any issue they may have. But we think this is certainly not
the view of the law of Scotland. The law of Scotland regards con-
cubinage as immoral and irreligious, and even criminal, and has no
view whatever of favouring or tolerating it. But as thin law is
unable wholly to prevent concubinage, it allows legitimation per eub-
sequens matrimonium, with the view, among others, of drawing the
parties out of that state. In this respect, the law of Scotland is the
same, we conceive, with the Canon law, from which it appears to
have been derived, and similar indeed even to the Reman law, in
' which legitimation per subsequens matrimonium was originally in-
troduced by Constantino, the first Christian Emperor, aa a tempo-
rary law applicable to past concubinage only, and to. children bora
before tbe date of the law only ; and in which, even when legitima-
tion was afterwards extended so as to include every case of concu-
binage, it was never allowed with any view of favouring or acknow-
ledging concubinage as a legal or semi-legal state. It is die state of
marriage, and not of concubinage, that is favoured *—' Tanta enim
* est vis matrimonii subsequentis,' says the Canon law, Craig, b. ii.
tit. 13, § 16. ' ut de priori delicto inquiri non sinat, et illttd omnino
* tollat et purget.' Setting this view aside, then, we see no reason
why, in order to legitimation per subsequens matrimoniam, the con-
ception or birth of the child should be in Scotland, so far aa relates
to the interest or right of tbe father or mother. It seems eaJficient
that they stand in the illegal relation of father and mother of a child
born without marriage, and are proper subjects of the law of Scot-
land, in order that this law may offer them the inducement to change
this illegal relation into a legal one per subsequens matrimonium.
(2.) It is said that the legitimation of bastards in Scotland per
subsequens matrimonium is founded on and limited by a fictio juris,
vie. that the parents were actually married at the date of the birth,
or rather conception ; and that, when the parents were resident in
England at the time of the conception and birth, this fiction cannot
be admitted. We doubt whether the rule of legitimation by sub-
sequent marriage was substantially founded on any fiction of that
kind, or whether it be possible to limit tbe rule precisely by means
of any such fiction. We doubt very much whether such fiction can
be admitted to any greater extent than this, that when such circum-
stances have existed as would infer not only nullity, but even crimi-
nality by tbe law of Scotland in a marriage between the parents, if
it be supposed to have taken place before the conception of the child,
then legitimation is excluded. Thus, if at the conception either
father or mother stood already married to another person, legitima-
tion per subsequens matrimonium is excluded. But we doubt
whether any other circumstance inferring simply incapacity of the
parties then to many would bar legitimation; as, for instance, the
COURT OF SESSION. 621
insanity of one of the parents at the time of conception. Without
determining that question, we hold it to be quite plain that at least
the circumstances must be such) that in case the father and mother
had married at the time of conception of the child, the marriage
would hare been moid* Now, what circumstance of that kind ex-
ists in the present case? The presence of the parties in England
surely is not such circumstance. Could they not have married in
England, if they pleased, at the time this* child was begot? Could
they not have come to Scotland and married at that time as well as
after? In the present case, we are net able to see the shadow of
difficulty m the application of the fiction, taking it in the utmost
force that can be imputed to it.
(3.) It has been argued that this mode of legitimation in Scot-
land is excluded by the unchangeable nature of the personal status
of bastardy, which the bastard has acquired by his conception and
birth in England, and brings with him into Scotland. It does not
appear to us possible to adopt that argument. We do not think
that an English bastard coming into Scotland could bring the En-
glish law of bastardy with him, any more than an English lawful son
coming into Scotland would bring the English law of legitimate
filial relation with him, — or an English father and mother, married
or unmarried, could bring with them the English law applicable to
their respective conditions,— or any more than a Scotch bastard, or
lawful child, or Scotch father and mother going to England, would
import with them into England a portion of the Scotch law for the
regulation of their own rights. An English bastard coming into
Scotland will be a bastard here, because his parents are not married ;
but hie status here must, we think, be that of a Scotch bastard, not
of an English one. On this point, the decisions in the late divorce
cases apply a fortiori. For, in these cases, the argument was, that
the indissolubility of the English marriage must continue in Scot-
land, not only because personal status generally continued when the.
person passed into another country, but, a fortiori, because the status
of marriage was constituted by express contract made under the law
of England, and specially fixing this indissolubility, and that this, sta-
tue could not be changed in this respect without violation of that
contract* Yet this Court unanimously held that argument not to
be good* After these decisions, we think it is impossible to receive
the maxim, status personalis ubique circumferri, without such quali-
fications as will entirely exclude it from having any effect in this
<
question**
(4.) It is said that the parties concerned here were not domiciled
in Scotland at the time of the marriage, or after it ; and, therefore,
the law of Scotland ought not to be held to have affected their rights.
Now, if this meant, and consistently with the facts of the case could
mean, that the parties had no such connexion with Scotland as made
their persons properly subject to its law, we think the reason would
(Kft CASES DECIDED IN THE
be good why their* personal status should ndt be affected by tbtt law.
But it is impossible, in this case, to make such a statement consist-
ently with truth. Alexander Ross was a native Scotchman, who
' had gone to England in order to carry on business there* not in all
probability meaning to end his .days there, but continued to hold in
Scotland a landed estate— -continued to visit Scotland occjumwany,
and to exercise the rights of a Scotch proprietor and citizen ; in par-
ticular, remaining liable to the jurisdiction of the Scotch Courts, so
that, at any time, decree could have passed against him ; and there
was no occasion to cite him as a foreigner is cited. When this per-
son came to Scotland, bringing with him his son, and the mother
of his son, for the manifest purpose of subjecting himself and them
fully to the law of his native land, in order that, under that, law, he
might marry the mother and legitimate the son, so that the son
might succeed as a Scotch heir to the Scotch landed estate; and
when, for this purpose, he did marry the mother, after the regular
.form of the Scotch law, and acknowledge the son as his lawftd heir,
and did stay in Scotland for some months, — it does seem to us im-
possible to hold that he was not a proper subject of the law of Scot-
land. We cannot comprehend on what grounds he could pretend to
say, or any body else to say, that, after all this had happened, this
native Scotchman was still to be viewed as a stranger, on whom the
law of Scotland ought not to attach,-— who was to live here aa if he
had been a prisoner of war, or bad been cast on our shore from a
foreign vessel to-day, and was to sail away in another to-morrow.
We think he was as much a subject of the law of Scotland, to all in-
tents and purposes, as any man in that kingdom. Then, if he was
so, his wife, who came there to marry him, and did there marry him,
and there lived with him for some time after .her marriage, must also
have become a subject of Scotland ; and her son', who also came to
Scotland with her, and staid there in order to this very effect, must
equally have been so* Suppose that on the day Alexander Ross
left Scotland his affections bad changed, and he had disowned this
son, and the present defender bad' brought a declarator of legitimacy
against him; could he have pleaded that he was a stranger, on whom
the law of Scotland did not attach, and therefore, that though he
had married the mother of his son, this son was not legitimated per
subsequens matrimonium ? Could such a defence have been sus-
tained ? It would not, we think, have been easy to auasatn it ; and
yet, if that could not have been done, the plea of want of domicile
can just as little be sustained now; for legitimacy once emiating,
cannot be lost It is said that if Alexander Boss had died, then
his domicile for intestate succession in mebiKboa weald have been
held to have been in England. Perhaps it would. Intestate suc-
cession in mobilibus appears to be allowed to be regulated by one
law, without division ; and so the law of the country with wb&cb the
defunct was most connected is wholly preferred, however mncb the
COUBT OF SESSION. * 62*
defunct amy also have bees connected with way other country.
And that appears to be on the principle that he, dying intestate, may
reasonably be presumed to have contemplated and intended that his
moveable (or personal) property should descend by the law with
which he was best acquainted, and the law of the country of which
he probably considered himself as chiefly an inhabitant and citizen*
It may be that, in regard to Alexander Ross, that country was En-
gland; and so his moveable succession, in case of intestacy, would
have fallen under that law. But this can form no reason for deny-
ing that he was a person subject to the law of Scotland, bo that,
baring married there, his marriage should aliect him agreeably to
that law* It is competent to any, even a native Scotchman, to settle
his affairs, so that his principal domicile for intestate moveable suc-
cession may be in any foreign country, though he lives one half of
every year in Scotland. But it would be strange, indeed, to bold
that, during these residences, he was to be considered here as an
absolute stranger, not subject at all to the law of Scotland, but en-
circled with a legal atmosphere of personal status brought with him
from abroad.
We need hardly observe that one topic which has been urged in
some cases is entirely inapplicable here, viz. that the actus legitimus
was done in Scotland in fraudem of the law of England. Assuredly
Alexander Ross bad no view of defrauding the law of England. His
object evidently was to give right to his son a* in Scotkmdi and
there can be no doubt that he bo*a fide intended to do ail that the
law of Scotland required for that purpose.
Lord Craig ie. — So far as the Commissaries have decided in this
case, in reference to the first branch of the summons, that ' the de-
* fender is the son of Alexander Ross and Elizabeth Woodman,' and
* that a marriage between these parties was regularly celebrated in
* 1815,' they appear to have exercised the jurisdiction committed to
them ; and the result of these two findings by the general law of
Scotland would be, that the defender was the nearest and lawful
heir of these parties, if not within the prohibited degrees of kindred
according to the law of Scotland, and if nothing had intervened be-
tween the birth of the defender and the subsequent marriage, which
could prevent such a union.
But, so far as the Commissaries proceed, in reference to the last
conclusion of the libel,, and to the brieve taken out by the defender
for serving himself heir of tailzie and provision in the entailed estate
of Cromarty, to inquire ' whether the defender is incapable of lawful
* succession, and has no title to any of the civil rights competent to
* lawful children,' the Commissaries have, in my opinion, exceeded
the bounds of the jurisdiction committed to them.
Such a conclusion would have been imperfect and inadequate in
e competition for the personal estate or qxecutry of the defender's
624 CASES DECIDED IN THE
father, and where each of the parties claims die office of executor
' qua nearest in kin. Until a- confirmation had been obtained, no
; right would have vested in the successful party. But, in relation to
the entailed estate of Cromarty, or to landed or heritable property
' situated in Scotland or elsewhere, the Commissaries appear to have
no authority. The only question cognisable by them was, bastardy
or not? Whether the pursuer, by preparing her summons in this
Unusual way, expected to derive some aid from the late determina-
tions as to intestate succession in personal property, which is now
held to be regulated by the law of the ancestor's permanent domicile
at the time of his death, it is not easy to say* But if she did to, it
is only necessary to examine those determinations, to nee thai they
are truly adverse to her claims.
In this view of the case, the proper course would appear to be,
* to make a remit to the Commissaries, instructing them to dkmisi
the summons, so far as relates to the point already noticed, and to
proceed further in the cause as shall be thought just* But if we are
•in hoc statu called upon and authorized to decide upon the rights
and claims of the parties in relation to the lands and property
of Cromarty, which at present is the only subject of competition
or argument, I am humbly of opinion that the defender ought to
prevail.
There is no longer any dispute as to the defenders filiation, nor
as to the legality of the marriage between his father and mother,
which was not collusive or simulate, but true and regular in all re-
spects, and followed out in every possible way by the acts and deeds
of the parties interested, and in all questions of status, so far as re-
lates to the married pair. The question is, whether the defender's
right, as the eldest son and heir of his father by the law of Scot-
land, is to be defeated by the law of England, if (what is not very
clearly ascertained) his father had his general residence in England
at the time of his death ? In some part of the argument, the pur-
suer laid some stress upon the circumstance that the defender bad
been born in England, but that seems to have been given up ; and
rightly, the defender, before the marriage between the parties, being
in the eye of law nulHus filius, and baring no interest in their status
or domicile, while they-had as little in his, exceptYor the purpose of
relieving the parochial funds of the expense of his rnaintenanoe.
It humbly appears to me that in such a case there can be no just
or solid ground of distinction between the authority of the law of
England, and that of any other kingdom or country in Europe, in
which the defender's father or mother might have their residence at
any particular period. By the treaty which united the two separate
and independent kingdoms of England and Scotland, no such dis-
tinction was established, or meant to be established. On the con-
trary, while the laws respecting the general government and reve-
nues of the united empire were as much as possible to be assimilated,
COURT OP SESSION. 625
it was an express condition of the treaty— and, from the state of the
legislative body as then constituted, it was most just ■ that no alter-
ation should be made on the law of Scotland, even by the Legislature,
(and moot assuredly not by the Courts of Law in either country,) in
matters of private right, unless for the evident utility of the people
of Scotland. We are, therefore, to decide the point at issue as if
the two kingdoms were still separate from each other, or as if it had
occurred immediately after the accession of James the sixth of Scot-
land to the English throne; and if at that time the law of the an-
cestor's domicile (in the meaning lately affixed to this expression*
that is, the domicile of afcMse, in opposition to those . of origin or
birth, or that which is attended to in ordinary questions of jurisdic-
tion,) would not in the smallest degree affect the succession to his
landed estates in Scotland, it ought to have as little influence at the
present time.
If the question thus presented to us were to he considered as an
international one, and to be governed by those rules which are ob-
served between all or the greater number of dvilined and independ-
ent nations on the footing of mutual comitas, and from the utility of
having one common rule in transactions of a certain description, the
result does not appear to be. at all doubtful. It. will be found, and
indeed it was admitted by both parties, that while, in all the other
governments of Europe, legitimation by a subsequent mamage was
effectual, if there were no legal disability or mid impediment, the
English alone had rejected it. For this an eminent lawyer and judge
(Sir William Blackstone) has suggested many reasons, instead of the
true one, as given by the English Parliament at the tune* But this
is of no importance, as Courts of Justice must be guided by the law
as it stands, and without inquiring into the original causes, or even
the expediency or justice of it. In these circumstances, there might
be room for contending, in an English Court of Law (at least in re-
ference to those individuals whose property in general is situated in
other kingdoms,) that regard should be paid to what is the general
law of Europe in such a case. At any rate, it is not easy to per-
ceive a reason why, besides retaining their own opinions or preju-
dices in regard to the succession of landed property situated in
England, the Judges in that country should attempt, or be held
as attempting, to extend them to lands situated in another country,
or in all other countries, where a different law has been long estab-
lished.
But in the transmission of landed estates from the dead to the
living, as well as with regard to the modes of constitution of land
rights, there is no rule of international law or jus gentium such as
has been already described. Instead of this, it seems to be estab-
lished in all countries where there is a law of succession regarding
land estates or rights, or burdens affecting such estates, that they
are transmitted and constituted according to the law of the country
62& CASES DECIDED IN THE
' where the lands are locally situated. It k imneeeaeary to quote an-
tboriftes on this point. The rule holds even in allodial subjects.
But in lands held by feudal tenure, it k a necessary and unavoidable
consequence from the nature of the right. As the right of succession
m such property was a boon from the superior, it depended at first
entirely upon his will, as expressed in the feudal grant Again, when
it came to be generally allowed, and if the course of succession was
not provided for in the investiture, it was to be indicated by the law
of the country, or mos regionk, and most certainly without any re-
gard to the domicile of the vassal, either at the time of his death, or
at any other period. The will of the vassal, although expressed in
direct and positive terms, was not effectual, unless authorised by the
superior, and in the forms prescribed by the public law ; and least of
all #as it to be gathered from the law of the place where lie might
choose to reside.
In the early feudal ages, individuals held lands in different coon-
tries, subject to different superiors ; and it was not unusual for the
sovereign of one country to be a subvassal in another, and without
any obligation to reside in any particular place, though all were liable
to be called out to attend the superior in the performance of their
feudal services. It would have been most extraordinary, therefore,
if the vassal's preferring one country to another should entirely go-
vern the course of hk succession, in opposition to the general kw of
the country where the lands were situated. Not mere than a cen-
tury ago, the noble family of Hamilton, besides their Scotch estates,
held an extensive territory, with the rank of Dake, in France ; and
ft k believed they also bad property in England ; but it never wis
imagined that the representative of the family at the tin*©, merely by
preferring one of these three kingdoms as the place of his general
residence, could alter the law of descent as it was fixed in the other
countries.
In a question with regard to the effects of marriage, or cf legiti-
mation per subsequens matrimonium, upon intestate succession, it
appears to he extremely doubtful how the doctrine ef the efemicile
cottkl he introduced to any extent. In matters entirely <kf pendent
on the wilt of the party, or to regulate the competency of actions
in Courts of Law, some' such rule may be necessary. But where
tiie immediate and permanent interests of parties are involved, and
particularly where those interests have become <be warranted grounds
of action in the Courts of Law, it seems quite unreasonable that the
e\n»ioife of chefce, a* it is ca!^^
the party is at any given time attune remancndi, should have a deci-
sive influence ; and it would lead to the most extraordinary and un-
juat consequences, if the status of a wife or of her diildre* were made
dependent on a tenure se precarious. By the nmrriage, if lawful
wfcere entered into,, the rights of the man and wife ate placed be-
yen* recall by the* joint wffi, whether directly or Mfreeti* an-
' COURT OF SESSION. 827
i
nounced ; and the relations and betigatiena between the parents and
tbe children are, if possible, still leas subject to the control of any
one of them. If, on tbe day after tbe marriage, a son previously
bom, and in tbe possession of large, property in Scotland, dies, eould
there be a doubt of its descending to bis brothers and sisters, born,
like, him, before the marriage, and failing them, to any children the
father might hare had by other marriages, and this entirely without
regard to the domicile of the father ? In the same manner, might not
a son or daughter previously born demand in a Court of Lair, in
erery country in Europe except England, ahment as a lawful child ?
And would it be just that the father 'a removal to England, whether
bona fide or fraudulently, should not only disappoint a just claim
while the father remained in England, (if each should be tbe law
there,) but that it should be -rendered ineffectual where the child was
acknowledged as a lawful child ? In such a case, would it not be
competent to attach any lands that might belong to the father in
Scotland ? Or might not arrestment be used jurisdicthmis fandandm
gratia, so sa to attach his personal estate in Scotlsnd, and so render
effectual tbe plaint of tbe child ? And if such are the rights and faci-
lities afforded to children so situated during tbe life of their patents,
4 are their rights of succession, after their parents' death, to be disap-
pointed or evaded by their rather s choice of a residence in a place
where there is either no form, or an imperfect one, for giving effect
to them ? *
A learned Judge (Lord Gillies), pot the question, quid juris, if,
after the raasriage, the husband had remained long enough in Scot-
land to create a domicile by residence ? and tbe counsel for the pur*
suer admitted that it was a doubtful question. But, as it appears to
me, this view of the case ought to be extended a good deal further.
if, by.tfce marriage, certain rights vest ipso jure in all the parties, can
these rights be vacated merely by tbe husband's removing bis person
to- another country, and the only one in the civilised world where
the Courts of Law would refuse to interpose ? If, in any other mat-
ter, a party should enter into an obligation which, though legal where
entered into, is ineffectual to produce action in some other country
to which he retires, was it ever heard that the creditor was to be
precluded from legal redress or diligence in the country where the
contract was entered into, and where the debtor became bound, and
might be compelled, in the ordinary coume of law, to perform all
that was incumbent upon him ?
In actions brought in the Courts of Law in Soothed, originating
• It, m virtue of the Cromarty entail, the defender had obtained a decree of irri-
tancy or of devolution against his father, and had completed a feudal title, would
it be -competent to a son by a subsequent marriage, or any remoter substitute, to
insist in a reduction of the decree and rafeftment after tbe fatfeer^ death, on the
gfrmud that the tether's last domicile, animo rtmsneadi^ had been in England ?
628 CASES DECIDED IN THE
in transactions in foreign countries, the rule is, that actor sequhur
forum rei. In this way not only an agreement will be sustained as
a ground of action in Scotland, though not authenticated according
to the lex loci contractus, if it be agreeable to the Scotch form ; bat
one that is not made according to the forms of the law of Scotland,
or which is held to he extinguished by the law of Scotland, is alto-
gether disregarded in our Courts, although it may be agreeable to,
. and still in force by, the law of the place where it was entered into.
. And as to the constitution or transferring of rights of lands situated
in Scotland, while no writing will be sustained here, unless authen-
ticated according to the law of Scotland, however formal it may be
according to the law of the country where it was entered into, so an
instrument executed in England, though ineffectual in point of form
there, will be sustained in the same manner as if it had been framed
in Scotland.
Thus, according to general principles, die present question ought
to be determined in the defender's favour ; and the late English de-
cision in the case of Birtwhistle, so far as I have been able to obtain
information, very strongly confirms this conclusion. The father was
an Englishman, and had landed property in that country ; but his
residence for many years had been in Scotland, where lie had .pur-
chased lands, and where also he had formed a connexion with the
plaintiff's mother, whom he afterwards married in facie eecleac.
In Scotland he had his permanent residence, but he died in England,
wheni his. sister, as his heir, by the law of England, took possession
of the English property, the plaintiff being allowed, without dispute,
to succeed to the Scotch estates. In an action of ejectment, how-
ever, in the English Courts, a decision was given in the defendant's
favour, thereby ascertaining, that in succession to lands no regard
• .was paid ex comitate to the law of the domicile ; and consequently,
where the case is reversed,' and the lands. in question are situated in
Scotland, no regard ought to be. paid to. the law of England. It
. seems to be indisputable, that if in England, legitimation per subse-
quens matrimonium is not admitted, even where the marriage had
taken place in Scotland, and the. parties had their residence in that
country.; so, with regard to lands in Scotland, where a different law
has been established for centuries, the children of audi a marriage
are entitled to succeed.
It remains to consider the decisions and legal authorities to which
reference has been made, as leading to a contrary result*
One class of these decisions relates to intestate succession in per-
sonal estate or executry, which, since the determination of Lord
Thurlow in 1791, has been governed by the law of the ancestors
domicile; (see the words of the judgment of the House ofLordsL)
. It has been contended that the intestate succession in landed pro-
perty ought to be regulated in the same manner ; but upon tka sub-
ject, after what has been already said,, it is unnecessary to offer any
COURT OF SESSION. 629
* argument. Indeed, upon looking at the different decisions,4 it will
be seen the* the distinction between the two cases his been at all
times most distinctly marked. In the case of Hog v. Hog, 7th June
1791, Fae. Coll. p. 378, it is expressly admitted that 'landed pro-
* perty must*ver remain subject to the law of the territory.* In the
case of Balfour r. Scott, decided in the House of Lords, 11th March
1793, where the question was, whether a person, taking as heir by
the law of Scotland, could be required to coRnte, when claiming a
share in the personal estate of the ancestor, who had his domicile in
England ? it was decided in die negative. But by the same rule,
if the ancestor bad been domiciled in Scotland, the heir could not
have taken the moveable effects in England without being liable to
collation. And if the ancestor had left nothing but lands situated
in Scotland, bis succession would have descended, without regard to
domicile, according to the law of Scotland.
•# • While on this subject, I may take the liberty of stating, that al-
though, with regard to intestate succession in personal estate, the
law must now be considered as fixed, there are individuals who
greatly doubt the authority, as well as die expediency, of the rule so
established. That it was rested upon international law cannot be
asserted, the current of the decisions m Scotland for a considerable
tame having ran in an opposite direction ; Morris t>. Wright, 14th
January 1783. In its consequences !t did most directly alter the
established law in Scotland, by competting the Commissaries to con-
firm a* .nearest in kin to a person deceased, his father and mother,
and the representatives of deceased nearest in km, who, by the law
of Scotland* were excluded from the succession, and who are not,
aoearding to our law, nearest of kin to die deceased. In such a case,
the interposition of the Legislature appears to have been necessary
to justify such a distribution of the personal estate ; but it was also
necessary, 1* To give publicity to die establishment of such a rule.
2. To point out some short sad simple form which should be effec-
tual throughout the empire, and by which a party might counteract,
in whole or in part, the presumption on which the rule is founded,
if it should not be agreeable to bis will ; and, 3. To define more
clearly the nature and extent of the residence which should govern
the succession, it being almost impossible in many cases to discover
it ; e. g. where, from motives of pleasure or profit, a man divides his
resident* between Scotland and England, or where an individual,
after having formed a domicile in one place, has left that place, and
declared his purpose never to return, but to reside in the place of
his nativity or elsewhere. .
But however the law may stand as to succession in personal estate,
it was never intended in the same maimer to regulate die succession
in landed property, whether situated in foreign countries, or within
the ancient kingdom of Saathmd, which, m such a question,' must be
viewed in the same light in which it stoofrin 1707. Nov could
vol. v. £ s
630 CASES DECIDED IN THE
such a ' decision be given without violating the condttiotra oftthe
% treaty between the two kingdoms, and at the same time shaking the
security of the records respecting landed property in Scotland.
Inefficient and delusive these records would he, if the validity of
the rights and documents there appearing depended on the animus
remanendi of the successive proprietors, and upon the state of the
law in those countries where they have established their residence,
and which, to the Judges in Scotland, as well as to the parties in
general, must be altogether unknown.
With regard to the other decisions to which a reference has been
made, they do not apply. In the case of Sheddan, the parents had
been domiciled and naturalized in America, and there they had been
married, thus being subjected to the law of England, which, even
after the political separation of the two countries, remained in force,
unless where expressly recalled. The son, while his parents Kved,
was a natural son, having no claim as such, while his father %nd
mother, with regard to his property and effects, were similarly situ-
ated. And the question truly was, Whether, after the death ef his
parents, from whom he could take nothing, he was at once tor be-
come a lawful child, so as to take lands shunted in Scotland, in
which be had never been, and where his parents had never formed
any matrimonial connexion? On these- specialties, as Mated by an
eminent counsel in the case of Strathmore, the claim was decided in
the House of Lords. Had Sneddon's parents come to Scotland, and
there entered into the obligations of man and wife, the case, as it
appears to me, would have been viewed in a very different light.
Again, in the more recent case of Strathmore, the decision abo
rested upon special circumstances; and, according to the principles
explained in the case of Qirtwhistie, it might admit of flame doubt
whether the claimant could succeed to an English Peerage, although
his parents had been married in Scotland. But as to a British Peer-
. age, and still more as to a Scotch Peerage, I should greatly doubt
whether the same determination could be given. In the case of a
British Peerage,— that is, a peerage created since the Union,— there
must be a collision between the laws of the two countries before the
Union ; but why, in such a case, there should be such a decided
preference given to the law of England, I cannot readily discover.
Particularly when the British Peer takes his tide from a place in
Scotland, and still more where he at the same time holds a Scotch
* Peerage, to which a reference is made in the patent, it weald de-
serve consideration, whether, in point of construction, the later peer-
. age should not be held to descend to the heirs of the more ancient
one. With regard to a Scotch Peerage, the point appears to be
clear indeed. Scotland never was a conquered kingdom ; it was not
annexed to England, but united upon equal terms, each country re-
taining Hs private and municipal rights in the fullest extent, if not
expressly taken away. An individual, then, who in Scotland would
COURT OF SESSION. OS*
lam bean reostvad n a Scotch Peer before me Unioa, must still be
admitted to vote, and to tit in Parliament, if elected one of the sixteen
Scotch Peers. In the ease of one born in Scotland out of wedlock,
but legitimated by a subsequent marriage in Scotland, to the effect
of taking the landed estate of his family, I cannot see upon what
ground his right of succession to a Scotch Peerage could be disputed,
because, by the law of England, and in the case of an English Peer-
age, a different rule may prevail.
As to the foreign authorities, they may be dismissed in a few
words. In the ease of Conty, the marriage had been celebrated in
England, and yet the children were held legitimate; while the autho-
rity of Boullenoie is merely the opinion of an eminent lawyer in a
hypothetical case, and that a very special one, from the want of na-
turalization, in consequence of which, it would appear that Boullenois
thought that, by the law of France, the individual in question, bar-
ing been born in England, would cany along with him the state and
condition in which he stood by the law of England.
Again, in reference to the opinions of the ancient jurists, and the
distinction between statute personalia and realia, and with regard to
personal privileges and disabilities, they either confirm the opinion I
have formed, or are altogether inapplicable. The law of legitima-
tion, if it had been introduced by positive statute, would, so far as
regarded landed property, be considered as falling under the statute
realia; but with us there is no positive law on the subject. The
law of legitimation by subsequent marriage is as much part of the
common law of Scotland as that of primogeniture — the succession of
males in preference to females, and of full blood to half blood. And
to say that it may be disregarded, because the last proprietor had his
domicile in England at die time of his death, seems to be as unrea-
sonable as if it were proposed that a Scotch estate should go to
the sovereign, as in Turkey, or divide equally among all the children,
according to the law made in France during the Revolution, because
the last proprietor died domiciled there ; or that it should go to the
youngest child instead of the eldest, because the ancestor was domi-
ciled in the county of Kent, where that is the rule.
Again, as to the distinction pointed out respecting personal privU
leges and disabilities, much is to be found in the earlier writers
which cannot be reconciled, and which seems to be founded upon no
sound principle. It may be true that a privilege strictly personal,
such as that of a peerage, cannot be exercised of right except in the
territory of the sovereign by whom the dignity is granted ; so, if a
man is declared by a sentence in one country to be infamous, for
an act in hs own nature not inferring infamy, it will not be attended
to in any other country. But the right of legitimacy which follows
from marriage by the law of all the countries in Europe except En-
gland, and the colonies now or formerly parts of England, is not a
personal privilege in the proper sense of these words. It arises from
2s2
632 CASES DECIDED IN THE
the general law ; it operates not only upon- the state of the persons
legitimated, but on the rights of their parents and relatives, and for
them as well as against them. And as to the disability arising from
minority, the period of which is different in different countries, it
appears that, as in the case of actions brought in Scotland, a party
will be held to be a minor or not according to the rules established
in Scotland ; so, in services and other proceedings relating to lands
or real estates in Scotland, the same rule must be observed, although
it may not be a rule in the place where the pursuer resides, or where
the ancestor resided. But the inquiry is foreign to the present dis-
cussion. The question here truly is, whether a Jury of Scotchmen,
and in a Scotch Court, ought not to find that the defender, the child
of parents who were lawfully married in Scotland, without any re-
straint in point of propinquity or otherwise, and having no other
children, is the nearest and lawful heir of his father in lands situated
hi Scotland? And. to this, I think, there can only be one answer.
Lord Me ado wbank*— Although the parties have not agreed alto-
gether in the statements of the facts which, they have respectively
averred, I concur, nevertheless, with the Judges in the Court below,
in being of opinion that the discrepancy between them is so imma-
terial as to render unnecessary any further investigation as to the
accuracy of either.
Thus it is either proved, admitted, or not seriously denied, that
the defender is the reputed and acknowledged, child of Alexander
Ross and Elizabeth Woodman ; — that he was born in England whue
his parents were there residing in a state of concubinage ; — and that
neither of them, at the period of his conception or of his birth, were
married persons, or within the forbidden degrees, or were under any
circumstances whatsoever that could have prevented them from so-
lemnizing a marriage betwixt them according to the rules of the law
of Scotland ; but that both were domiciled in England, and so si-
tuated, that in the event of either having died intestate, their per-
sonal succession would have been regulated by the law of that
country — Elizabeth Woodman, on the one hand, not only having her
only residence in England, but being a native of that kingdom, while
Alexander Ross, on the other, although not a native of England, but
a native of Scotland, had established his more permanent and usual
residence in the former country. In like manner it is proved that,
subsequent to the birth of the defender, these his reputed parents,
being at the time subjected to the laws of Scotland, were married in
and according to the rules and rites prescribed by the municipal and
ecclesiastical laws of this country ; — that previous to this marriage
Mr. Ross had occasionally visited Scotland — had succeeded to two
several estates within this kingdom — had been enrolled as a free-
holder in more than one Scotch county, and that he and hn wife
having come to Scotland a few weeks before the sdeimnzatkm of
COURT OF SESSION. 63S
*
their marriage, continued in it for some time afterwards ; — that the
defender accompanied his parents to Scotland — was with them at
the time of their marriage being solemnized — and was from that
period, both within Scotland and England, acknowledged to be their
lawful child.
I also concur in the opinion on which the proceedings in the
Commissary Court must have been founded, that the parties in this
case having purchased brieves from Chancery to take up the succes-
sion to the estate of Cromarty, and it being clear that the pursuers
-can only be entitled to be preferred in that competition, if the de-
fender, as being a bastard, be incapable of succession, they have pro-
ceeded in due and proper form in originating the present proceed-
ings before the Cousistorial Court, to. try the question of the de-
fenders legitimacy.
The terms of the judgment pronounced are also, in my opinion, cor-
rect and proper, and in no respect can be understood as determining
any matter incompetent for the consideration of that Court. It has only
been declared that the defender is a legitimate child, and * capable
4 of lawful succession, and having a title to all the rights competent
' to a lawful child ;' and so determining generally, the Commissaries
appear to me not to have exceeded the bounds of the jurisdiction
committed to them.
I see no ground, therefore, for disturbing the interlocutor under
review, either upon the principle of the proceedings being improperly
or irregularly instituted, or of the fact being imperfectly ascertained,
or the terms of the judgment being incompetent or excessive. And
1 have at length arrived at the conclusion, after giving the case that
consideration which its novelty and importance required, that it
ailght also to be adhered to as being well founded in point of law.
This opinion is altogether independent of the fact of the defender's
father having been bora in Scotland, and of his having kept up some
connexion with this country during his life. I should have viewed
the case in the same light had Mr. Ross been born in England, and
had no other connexion with Scotland than that arising, first, from
his having possessed and left an heritable estate subject to the juris-
diction of the Courts of this country ; — and, secondly, from his mar-
riage having been contracted in Scotland, when, as a natural born
subject of the Crown of Great Britain, he was, as living within the
territory of Scotland, in every respect as amenable to the peculiar
provisions of its laws and institutions, and as capable of acquiring
rights and qualifications under them, as he would have been amen-
able to the laws and customs of England had he chosen to remain in
England, and to have contracted marriage within the boundaries of
that division of the empire.
In short, my judgment depends on this simple view of the case,
that the defender's parents having, as natural born citizens of Great
Britain, been in a capacity at the time of their marriage to subject
684 CASES DECIDED IN THE
themselves to the peculiar laws and institutions of Scotland, and to
the effects and qualifications thence anting ; and having so subjected
themselves by coming into this country, rendering themselves amen-
able to its jurisdictions, and solemnizing their marriage according to
its laws, customs, and institutions, did thereby contract all the) obli-
gations and consequences which by them are attached to the state
of marriage ; and that one of these consequences being, that children
antecedently procreated of such parents as may hare afterwards mar-
ried, and who were under no disability to marry at the time of their
conception and birth, shall be thereby legitimated, it must follow that
the defender is to be recognised as a lawful child, and his rights en-
forced accordingly.
To this, however, it has been objected, 1st, That aa by the law of
Scotland, whenever bastardy is indelibly fixed on a child, (aa in the
case of children born of an adulterous connexion,) the subsequent
marriage of the parents does not legitimate that child ; so the de-
fender having been born in England of parents living in a state of
concubinage, where legitimation per subsequent matrimonium is
unknown, his bastardy must be held to be indelible,' irreversible, and
incapable of being removed by the subsequent marriage of his parents.
2d, That the parents of the defender having a domicile in England,
by which their personal succession would, in the event of their dying
intestate, have been distributed, both at the period of their marriage
and after it took place, the law of Scotland, in matters connected
with that event, cannot be held to have affected their rights, or to
have governed the effects resulting from the contract. In other
words, that it is to be considered as an English marriage, and dealt
with accordingly.
Neither of these objections seems to me to be well founded.
In considering the first of them, it is important to keep in view,
as a matter incontrovertibly established, that the rale admitting of
legitimation per subsequent matrimonium is founded upon the prin-
ciple that, in all such cases, the matrimonial consent, preaumptkne
juris et de jure, took place at the period of the carnal communicates
of the parents or conception of the child, which is therefore held to
have been the true date of the nuptials. It disregards altogether the
period of their declaration or solemnization, which is held and deemed
to be nothing else bat the mere evidence of a marriage having been
contracted between the parties. Upon this ground it is, that there
being no room for the operation of the principle on which the doc-
trine of legitimation per subsequens matrimonium is founded in the
case of children born of an adulterous connexion, such children can-
not be legitimated by the subsequent marriage of their parents; be-
cause, whatever a change of circumstances may have enabled them
to do afterwards, at the time of the birth they could not bare legally
intermarried*
It may also be materia) to keep in view that the general rule
COURT OP SESSION. 695
itself, and the exception just stated, prove that the law of Scotland
admits evidence of the filiation to the father of children born in con-
cubinage, so as to allow of their being legitimated, equally as it re-
cognises the fact of their being children of the mother. Indeed,
without such proof being admissible, there could be no legitimation
per subsequent matrimonium at all. It is quite a mistake, therefore,
to suppose, as seems to have been taken for granted, that bastards,
in contemplation of law, belong any more to their mother than to
their father. The difference is, that in the one ease the fact of the
filiation generally requires no proof— in the other it does ; and al-
though for certain purposes, and for a certain time, the mother is
allowed the custody of the child, the burden of maintaining it is im-
posed upon the father whenever the filiation is established ; but from
neither the one nor the other does it acquire any public status or
right whatsoever.
From these propositions it is to be inferred, that when the law of
Scotland is called upon to determine any case of legitimacy per sub-
sequens matrimonium, (the marriage within Scotland being admitted,)
it requires no investigation in point of feet, excepting in two parti-
culars ; — first, the filiation of the child ; — and, secondly, the condition
of the parents at the time of its conception and birth, whether they
were then free to have intermarried with each other, or whether they
were incapable of forming that connexion. If these are established,
it must follow that it cannot require or even permit any investiga-
tion into circumstances connected with the condition of the child ;
because that would be inconsistent with the principle on which the
rule itself is founded, namely, that the parents were married when
the child was conceived, and that it was born in wedlock, and came
into the world with all the rights of a lawful and legitimate child.
If so, to require an investigation into any thing with respect to its
condition would be manifestly absurd, for its condition must in all
such cases be dependent upon that of its father ; and although, until
the solemnization or declaration of the marriage of the parents, it was
reputed a bastard, that reputation was incorrect and contrary to the
fact. No doubt the child was apparently a bastard, because there
was no external evidence of the marriage of the parents ; but, fic-
tione juris, the marriage had taken place ; and from the hour when
that evidence was made manifest by the subsequent marriage, in
contemplation of law he was regarded as a legitimate child, with all
the rights and privileges belonging to that status.
In this situation, and in a question of this kind, it seems of no
importance whatsoever where the child may have been born, pro-
vided his parents, at the time of his conception and birth, were
natural born subjects of the Crown, and capable of subjecting them-
selves to the peculiar institutions of the law of Scotland — could
have contracted a marriage — and did afterwards legally declare
or solemnize their marriage within its territory. Accordingly, t
686 CA8ES DECIDED IN THE
do not find in any book on the law of Scotland the slightest autho-
rity for giving countenance to the doctrine that an inquiry can be
instituted into the condition or the situation of the child, either at
his birth or during his life, or into any thing else but the filiation
. and the condition of his parents. The capacity of the child to be
legitimated never enters into the discussion. It is the capacity of
the parents to have intermarried that forms the subject of inquiry.
Indeed, I observe it to be expressly laid down in the notes which
I possess of the Lectures of one of the highest authorities in the
law of Scotland, (Mr. Baron Hume,) that, if a son born in concu-
binage shall himself marry, and shall die, leaving children, before
the marriage of his parents, yet, if his parents do afterwards many,
his children will become entitled to all the rights of the lawful de-
scendants of their grandfather, as if their own father had been born
in wedlock.* In that case, however, the son born before the
marriage of his parents must have lived and died with the reputa-
tion of a bastard, and with that character indelibly and irreversibly,
as it so happened, stamped upon him during his whole life. Yet
the power of the principle upon which legitimation per subsequens
matrimonium is founded is so invincible as, in such a case, it would
seem, not even to admit of an inquiry as to whether the apparently
indelible bastard was living or dead at the time of the marriage of
his reputed parents, but simply whether he was their child, and
born at a time when they could lawfully have intermarried.
In the present case, therefore, it humbly appears to me to be of
no importance that the defender was born in England, because, if
. his filiation be admitted, or not seriously denied, or proved, which
it is, and there was nothing at the time of his conception and birth
to have prevented his parents from legally intermarrying in Scot-
land, and they did afterwards so intermarry — then, provided there
is no principle in the law of nations which could prevent all the
consequences of a Scotch marriage from legally attaching to them,
no effect would be given to, or inquiry permitted respecting his ap-
parent condition at the time of or subsequent to his birth* Fic-
tione juris, the law must hold the true date of the marriage of his
parents to have been that of his own conception or birth, and not
that of its solemnization or declaration. Although the defender
was, therefore, no doubt reputed to have been born a bastard, that
reputation was false ; for his father and mother, on the contrary, as
has been since proved by the ceremony performed by the clergy-
man, were truly at the time of his birth married persons, and he
himself was a legitimate son. In short, the defender (to use the
expression of the civil law in such a case) natus erat, et non factns,
filius legitimus.
• To the aamc purpose, Bee Voet. Lib. xxv. tit. 7, § 7.
COURT OF SESSION. 687
A case was put, that the defender bad been bora in France of a
Frenchwoman, living in concubinage with a domiciled Scotchman,
in which case it was said he would have been born a Frenchman
and an alien, and that, as no subsequent marriage could have taken
off the stain of alienage, neither could it have removed the stain of
bastardy*
But, upon the grounds already stated, I most be humbly of
opinion that, upon any view of the law, the determination of such
a case would have been directly the reverse of that which was as-
sumed. For, in the first place, the father is supposed to have been
a Scotchman, with his domicile in this country. 2dly, The child
was born under a system of law admitting of legitimation per sub*
sequens matrimonium, and with no indelible stamp of bastardy af-
fixed to him by the law of the place of his birth. 3dly, The mar-
riage of the parties was contracted in Scotland.
Now, it seems to have been forgotten that, from the moment of
the marriage, the status of the mother merged in that of the Scotch
husband, and her stain of alienage was thereby immediately re-
moved. Accordingly, it has never been questioned that a woman
so situated is, in the event of her husband's death, entitled to her
terce, and to all the other rights competent to a native Scotchwoman*
And so, in the case of Jankouska against Anderson, Nov* 25* 1791,
where the tercer was a foreigner who had been married to a native
of Scotland, this right was not disputed* The marriage, and the
rights arising under it, were therefore, if questioned in the case
supposed, to be considered in the same light as if both the parties
had been natural born subjects of Scotland ; and it being an inhe-
rent qualification of such a marriage, that the children born before
it was solemnized or declared became thereby legitimate, and there
was no impediment, from the mother at the time of the child's
birth being an alien, to the operation of the presumption that the
true date of the marriage was that of the conception of the child,
I cannot doubt that a child so situated could no more have been
regarded as an alien, than if the parents had been actually married
in the face of the church of Scotland before its birth, within the
realm of France.
In short, the whole doctrine of the indelibility of the bastardy
of tne defender, arising from the fact of his birth having been in
England, must be rested upon the principle of there having been
something at that period existing in the situation of his parents re-
spectively, and as regarding each o(her, which would effectually
have precluded them from contracting a marriage in Scotland,
followed by all the rights and consequences of a Scotch marriage*
For, if there was no such impediment, the defender, in fad, never
was a bastard, and therefore never could have that status indelibly
impressed upon him.
i
638 CA6ES DECIDED IN THE
• 2. But as it is not alleged that the late Mr. Boas audi Elizabeth
Woodman were situated, either by their being married persons, or
• within the forbidden degrees, so as to have rendered their inter*
marriage in Scotland illegal at the period of the defender** birth,
and as it cannot be pretended that their being domiciled in En-
gland could have presented a bar to their forming that connexioo,
it is to be considered whether there be any solid ground for the
second objection stated to the legitimacy of the defender's birth,
viz. that at the time of the declaration or solemnization of their
marriage, they, having had such a domicile in England as would
have rendered their personal succession liable to distribution under
the provisions of that law, were thereby incapacitated from con-
tracting a marriage in 8cotland, accompanied with, and drawing
after it, those different rights and consequences which, by its prin-
ciples and policy, are deemed to be inherent in the contract
But the principles regulating the distribution of personal succes-
sion are altogether different from those which apply to question!
relating to marriage and the rights flowing from it. In the former
cases, the presumed or implied will of the deceased, in the absence
Of his expressed wtllj forms the regnla regulan8ifbr determining til
such questions $ and from its being held to have been his intention
that his personal estate should descend according to the rules of
that law, with which, from his residence under it, he is supposed
to have been best acquainted, that of his domicile is justly fixed
upon as the law by which it is to be distributed.
It is obvious, however, that even if such questions as the pre-
sent could be determined by the will of the parties, there would,
by its application to them, be a strange inversion of the principle
on which alone it is made to operate upon cases of intestate suc-
cession. For in the latter the implied will of the parties is only
had recourse to, when legal evidence of the actual will is awanung
er defective ; but in such cases as that now under consideration, it
cannot be alleged that there is ever any doubt of the parties hav-
ing, in a manner sufficiently formal and authoritative, declared
their will and intention to have been in direct contradiction to that
which, by the supposed implication of the lex domicilii, the Con-
sistorial Court is required to give that effect to. Thus it is, with
all deference, in this case, impossible to dispute that, by their leav-
ing their domicile in England— coming into Scotland— solemnizing
their nuptials according to the law of Scotland— and by their after-
wards acknowledging the defender as their legitimate child, his
parents as expressly declared their will and intention to have their
marriage deemed and taken to be a Scotch marriage, and to have it
accompanied and followed by all the obligations, rights, and
qmences of that contract, as in a case of personal succession could ha;
been afforded by the most regular and formal testamentary deed.
COURT OF SESSION. 689
But indeed the rights consequent upon she raaitintenisi contract
are totally independent of the will or intention of the parties*
* * Foreign Court*,' it was observed by the Lord Ordinary in the
case of Gordon against Pye, ' are in sash cases nowise /calked upon
* to inquire after that will, or after any municipal law to which it
1 may correspond. They are bound to look to their own law ; and
1 it is, with all deference, thought to be in a particular degree con-
* trary to principle, to make that law bend to the dictates of a
* foreign law in the administration of that department of interna-
' tional jurisprudence which operates directly on public morals and
* domestic manners.9 And it cannot now, after the judgments in
that and similar oases, be doubted that this is the principle which
governs the law of Scotland.
But if the intention, or presumed intention of the parties is
altogether excluded in such questions, there has been no legal
principle shown upon which the lex domicilii should be allowed
either to control or to affect them*
The principle of personal disability, arising from the particular
law of the domicile, to enter into the contract beyond its territory,
is disclaimed. Indeed, the notion of personal disabilities so attach-
ing themselves is clearly and obviously untenable. It no doubt
was at one time entertained; but the doctrine has long been allowed
to be inconsistent and absurd, and is exploded by the best public
jurists. At all events, the decisions of this Court in the cases of
Gordon against Pye, and others since determined, have fixed that
such a principle is not admitted iato the law of Scotland.
The only ground, then, relied upon for giving effect, in the pre*
sent case, to the lex domicilii is, that the different obligations of '
the contract having been intended by the parties to be executed
under the law of the place of the fixed and permanent residence, it
is by it that its nature and extent must be regulated. But this
view, it is obvious, just reverts to the implied intention of the par-
ties (and that, too, in direct opposition to their formally and legally
expressed intention) to limit the extent of the contract, by that
which is to take place after it? obligations have been incurred, and
those rights which regard not themselves only, but their issue,
fixed beyond the reach of any will of theirs to alter, infringe, or
control them.
Accordingly, there is no book on the law of Scotland which lays
it down that such questions are to be determined by the law of the
domicile $ and it is therefore impossible for me, not only in the
absence of all such authority, but in opposition to the principles
laid down, after the most solemn consideration, in the cases of
divorce brought in this country by parties married in England, and
before taken notice of, to rest upon a ground for guiding my judg-
ment, which seems so inapplicable to the nature of the question,
640 CASES DECIDED IN THE
and which would lead to consequences so iTrecbncileabie to jus-
tice.
But indeed other cases besides those just referred to have oc-
curred, which seem to go a great way in proving that questions of
' this nature are not regulated by the law of the domicile, either
here or in England* '
Thus, persons in minority cannot, without the consent of their
legal guardians! validly contract marriage within England* It is,
however, matter of settled law, that if such parties come into Scot-
land, subject themselves to the law of this country, and contract
marriage, such marriages are binding and effectual in England,
and all the world over. But I am at a loss to see how such mar-
riages can be acknowledged without taking along with them all
the effects resulting from the law of Scotland, by authority of which
they have been entered into, and by the operation of which alone
they are held to be binding. For instance, suppose that an English
minor, domiciled in England, has a child bom in concubinage in
Scotland, and thereafter marries in Scotland, retaining his domicile
in his native country— on what principle could a Scotch Court re-
fuse to hold that child to be legitimate ? Not upon the principle
of the child having been born in a state of indelible bastardy, be-
cause, being born in Scotland, by the law of its birth, if it carried
any thing, it carried along with it the inherent privilege of being
capable of legitimation per subsequens tnatrimonium ; and still less
upon the principle that the marriage of the parents (considering it
as an English marriage, because in England the objects of the con-
tract were to be carried into execution) could not be attended with
the effect of rendering it legitimate* for in England there could
have been no marriage; and it is impossible to proceed upon a
presumption of that having taken place which never could have
taken place/ In short, if the law of England had followed the
parties, and they had continued subject to that law, upon the prin-
ciple of their bjeing strangers in Scotland, the result would have
been, that the pretended marriage was a nullity altogether. Bat
although the law of their domicile, it not only did not follow them
, to the effect of preventing, or of affording grounds for dissolving
their marriage, but the marriage by it was asivalid and effectual
as if the parties had been major, and the ceremony performed in
England in the face of the* church.
Upon r.o principle, presumption, or fiction, therefore, cpuld the
particular limitations and restrictions of the law of England, as it
appears to me, have been appealed to in such a case as that which
is here supposed. On the contrary, if it be clear that it cofild not
in such a case have affected die marriage itself, it seems impossible
to allow ft to operate so as to alter the nature of that contract, or
*o control its inherent qualifications* which, presompttone juris ct
COURT OF SESSION. 641
de jure* became binding from tbe moment of the commixtio. cor-
porum, and not from the period of the solemnization.
One other illustration may be given of this matter, by patting
the case in another point of view.
By the law of Scotland, fornication is a criminal offence, and
has been formerly more than once made the ground of criminal
prosecution. Now, put the case that an indictment for that offence
had. been raised against the late Mr. Ross and Elizabeth Wood-
man, who certainly lived for some short time in this country in a
state of concubinage, and after their marriage they had been brought
to trial before- the Court of Justiciary*— can it for a moment be
doubted, but that the defence of these parties, founded, upon their
subsequent marriage, would have been insuperable ? and that, if
the prosecutor had rested on their domicile, as taking off the in-
herent qualification of the contract, his plea, upon the principles
recognised and enforced in the cases of Gordon against Pye, and
others of the same description, must have been repelled £*. The
Court must. have held that the crime had never been committed,
because the true date of their nuptials was that when the first
carnal communication betwixt them took place* Yet this defence
would have rested entirely on tbe principle of the civil contract
having the effect which the defender contends for at present; and
it would be a strange anomaly to bold that this view must have
been successful in the Criminal Court, while in the Civil it is to
be altogether laid aside. This, however, I apprehend is out of the
question \ and if the defence of the defender's parents in the case
supposed must have been sustained, his in the present cannot be
allowed to suffer a different fate*
But I am inclined to take still another view of this question.
The principle of legitimation per subsequent matrinioninm, which
is admitted and recognised by tbe law of Scotland, is likewise ad-
mitted and recognised by the Canon law, and (it bar not in the
pleadings been denied) by the laws of every Christian country in
Europe, with the exception of the laws of England, the Legislature
of which has thought fit, by a local regulation, ma.de even in con-
tradiction to the rules of their own church, to restrict within their
territories the operation and effect of the matrimonial contract.
But marri age is a contract juris gentium, to which, by the law of
all nations, certain obligations, rights, and consequences are at-
tached j. and it would seem that the qualification of this public right
now under consideration may be fairly considered as part of the
public law of Europe. Now, although it may be quite competent
for England, or for any state, to restrict those obligations, rights,
* Tanta enim est vis matrimonii subsequently ut de priori delicto inquiri non
tioatt et illud omnino tollat et purget.— Ciuio, b. in tit* 18, § 16.
m CASES DECIDED IN THE
and qualifications with reference to the contract as entered into
within their own territory! I am inclined to be of opinion, that as
personal disabilities do not follow individuals extra territorium,
foreign Courts (and, above all, such a Court as the Conaktorisl
Court of this country, the Curia Christianitatis) cannot hold that,
by some kind of implication not explained, and contradicted by
the fact, such restriction is to control the obligations, consequences,
and qualifications of a contract juris gentium, entered into in s
territory where no such exception is allowed. If it was, result!
the most extraordinary and revolting would occur. Thus, in some
divisions of Germany, marriages (ad legem morganaticmsn, or ad
salioem) are allowed to be contracted by certain classes, which
have all the effects of the most regular matrimonial contract, ex-
cept that the parents, by an agreement, are entitled to exclude the
children nascituri from all right of succession, as legitimate chil-
dren, at least through their father. Now, pot the case that a Scotch*
' man, having his domicile in any of these countries, is raised or suc-
ceeds to a situation where such a privilege would be allowed him ;—
that he marries, and his children nascituri are in legal form ex-
eluded from the rights of legitimate children ;<— that children are
born of the marriage, which is afterwards dissolved by the death
of the mother— a second marriage, without any such limitation, is
contracted by the father, and a second family is born— thereafter s
competition arises betwixt the eldest sons of the two marriages fot
an estate tailzied upon the heirs-male of the father, and situated in
Scotland— I cannot conceive that there could, in such a ease, be
the slightest doubt that, in this country, the child of the first mar-
riage would be preferred, on the short ground, that the qualifica-
tion* competent to such marriage must he confined to the territory
by which such qualifications are allowed ; and that, being contrary
to the general principles. of law affecting that contract, they could
not be recognised in this country to affect the descent of land
estate, where they were utterly unknown.
In like manner, in the present case, where it is attempted to
limit the effects of marriage contracted in Scotland by the opera-
tion of a special enactment in England, and thereby to determine
a question of status, on which the rights of succession to am herit-
able, estate in Scotland most depend, it seems to he contrary to
sound principle to admit the operation of such a provision, or to
allow it to control the rights arising under a Scotch marriage, and
to deprive the child of the late Mr. Boss of the power of succeed-
ing to him as heir to that property, which, by the law of Scotland,
he might be entitled to take up.
Thus, too, it is to the same purpose stated by Blackstone, that
even if an incestuous marriage is formed, the issue of that marriage
in England will enjoy all the rights of lawful children; if k
COURT OP SESSION. 649
been challenged and avoided during the lives of both die patents.
Now, pat the ease that a party having an estate in Scotland forms
such a connexion, and, while domiciled in England, marries in
Scotland, and dies in England leaving issue—the legitimacy of
thai issue could not be challenged, it would seem, in England* It
will not, however, I presume, be contended, but that in this
country, and in such a case, where an incestuous marriage is held
to be void and null, their claims to the status and the rights of
lawful children would be at once rejected.
In the preceding judgment, I wish to be understood as giving an
•pinion confined entirely to the present ease, where the parents of
the defender were" natural born British subjects, capable of being
equally affected by the peculiar institutions of Scotland, when liv-
ing under them, as they would have been by the institutions of
England when subjected to them. I have no occasion to consider
what might be the case of foreigners not born within the allegiar.ee
of the Crown, and contracting a marriage while merely passing
through the country, when, as in the ease of two English citizens
marrying in France, mentioned by Boallenois, ' y auroient €t€ ma-
* ries sans s'y £tre fait naturaliser, pare* qu'etant veritabiement
4 Strangers, et comme tela soumis aux foil d'Angleterre.'
Neither do I mean et all to question the soundness of the deci-
sions in the cases of Sheddan and Strathmore, both of which, I have
understood, every lawyer has heldVto have been rightly determined.
But in both those cases the parties were subject to the qualifica-
tions and limitations of the law of England, and had contracted
their marriages within the territory of England or America, (where
the law of England prevailed,) by which the principle of legitima-
tion per subsequens matrimonium is excluded.
In these cases, therefore, the status of all parties had been com-
petently fixed within the particular territory in which their mar*
riages were contracted,- by a system of law omnipotent within its
own boundaries. In particular, the status of the children, as filii
aut filisc nullius, had been finally and irreversibly established by
the limitations of that system, and thereby all evidence had even
been excluded of their filiation to their supposed parents* In those
cases, therefore, there was no ground for holding that a new status
should be conferred on the children. On the contrary, the grounds
on which I have ventured, in this very difficult and important case,
to deliver my judgment, necessarily lead to the conclusion that the
children in both those oases could not be legitimated.
It perhaps may be proper also to mention that I can pay no re-
gard to the report of the case of Birtwhistle, determined in the
'Courts of Law in England j because I am quite aware of my own
incapacity, as acquainted with the law of Scotland, fully to com-
prehend the views and principles by which such questions may be
644 CASES DECIDED IN THE
•
regulated in the Courts of Westminster Hall. I shall only ob-
serve, that in that case, as stated in the pleadings of the parties,
no Scotch lawyer would have doubted for a moment that the child
claiming as the heir would, in the Courts of this country, have
.been recognised as a legitimate son; and that I have understood
the judgment proceeded, not upon any general principle applicable
to the present case, but upon a technical view of a text in Coke,
regarding the character of an heis according to the law of England ;
and that, had the matter in issue regarded personal estate, the de-
cision would have been different* But, with great submission, the
present question has nothing to do with the determination of the
Courts of Law in England, except it be adduced as establishing,
by way of precedent, a general principle. } and if the case of Birt-
whistle, as it appears to me, has determined any general principle
at all, it establishes this, that in all such questions no regard is
paid by the Courts in England to any other law than their own,
which refuses to bend to the dictates of a foreign law. even when
the question is one publici juris.
Upon the whole, I am humbly of opinion that the judgment of
the Commissaries, finding that the defender is, in Scotland at least,
entitled to the status and the rights of the legitimate son of the de-
ceased Alexander Ross, ought to be confirmed by dismissing the
advocation.
. Lord Gillibs. — It appears that the defender s father was a native of
Scotland, and his mother a native of England ; but these facta seem
to me to be of no consequence, as I am humbly of opinion that the
lex originis ot the parents cannot influence the determination of the
present question. I am likewise of opinion that the domicile of the
parents at the time of the conception or birth of the child is of no
consequence.
The fact of the defender having been born in England may be of
more importance, and shall afterwards be spoken to.
On full consideration, it is also my opinion that it. is of no conse-
quence to ascertain whether, at the period of their marriage, the de-
fender's parents were domiciled in Scotland. The domicile of in-
testate succession, to which I here allude, and to which counsel in
their argument referred, depends not only on the act, but on the in-
tention of the party. It is not enough that he be resident, bat he
must be resident animo remanendi in the country by whose laws
his intestate succession is regulated. This often makes the ques-
tion of domicile a difficult one ; but the rule in itself appears to be
just, and founded on sound principles. The general principle is,
that succession should be regulated by the will and intention of the
deceased ; and, if be fails to express his will, the dremnttaiice of
his residing animo remanendi in a particular country raises a pre-
COURT OF SESSION. 646
•
sumption that lie wished 01 intended hie succession to be regulated
by the laws of that country. Thus, in every case, it is held that
succession is regulated by the will (express or presumed) of the de-
ceased. But the intention or will of the party, which is of para-
mount importance in a question of succession, is of no consequence
at all in a question regarding the legitimacy of his children. This
must depend on the met of marriage, to which, no doubt, the con-
sent of the parents is necessary. But, if that consent has been given,
and a marriage has actually taken place, the legal effects of that
marriage quoad the children cannot be influenced, or at all affected,
by the will or intention of the parents. The principle, therefore,
' upon which the domicile of the party is hety to be of so much con-
sequence in a question of succession, has no operation in this case ;
and I humbly think that the judgment to be pronounced in it should
not be influenced by the lex domicilii, any more than by the lex
originis.
It appears to me that the merits of this case may be comprised in
the two following questions : —
1. On the one hand, is a child born of unmarried parents in En-
gland absolutely incapable of legitimation? Is the quality of bastardy,
so* stamped upon it at its birth by the law of the country in which
it was born, indelible ?
Or, 2. On the other hand, can the legal effects of a marriage duty
contracted in Scotland be affected and defeated in compliance with
the 'laws of other countries in which the persons may have resided,
or been domiciled, prior or subsequent to the marriage ?
In' considering these questions, it is not very easy to preserve a
^separation of the argument ; and I shall not attempt to do so in the
few observations now to be offered.
That an illegitimate child born in England is incapable of being
legitimated in England by the common law of England, may be true ;
but that goes a very little way in the present question ; nor does it
by any means follow, from an admission that such is the law of En-
gland, that the same child may not be legitimated in another coun-
try by the marriage of its parents in Scotland, where legitimation
per subsequens matrimonium is an acknowledged doctrine of the
law.
The proposition which the pursuer maintains, and in. my opinion
must maintain, in order to prevail in this litigation, viz. that such
character of bastardy is indelible, appears at first view rather a start-
ling one — and this impression will not be removed or weakened by
attending to the practical consequences to which it may lead. Two
persons, natives 'of, and domiciled in Scotland, but occasionally
visiting or residing in England, have a numerous offspring, suppose
twelve children, born alternately in Scotland and England, six in each
country. The parents finally enter into a marriage in Scotland ; and,
according to the pursuer's argument, the effect of this marriage is to
vol. v. 2 T
646 CASES DECIDED IN THE
confer legitimacy on one half of the family only, while the ether half
remain bastards. A doctrine can hardly be right, or agreeable to
sound principles , which leads to such consequence*.
It is not denied that the legal effect of a marriage in Scotland is
to legitimate all the children previously born of the parties who con-
tract the marriage. As in the Roman law, so by the older writers
on the law of Scotland, this doctrine is laid down without qualifica-
tion, and as subject to no exception. It is true, I believe, that by
the Canon law it was held that children born during the subsistence
of a prior marriage of either of their parents could not be so legiti-
mated. This exception seems reasonable, since otherwise the right
of the children of the prior marriage might be defeated by the legi-
timation of the children, older by birth of the subsequent marriage.
There is no decided case, however, by which such an exception is
sanctioned, nor is it countenanced by our older writers. But Mr.
Erskine says, ' The subsequent marriage, by which this sort of legi-
' timation is effected, is, by a fiction of the law, considered to hare
' been contracted when the child legitimated was begotten, and con-
' fiequehtly no children can be thus legitimated but those who are
4 procreated of a mother whom the father, at the time of the pcocrea-
* tion, might have lawfully married. If, therefore, either the father
' or the mother of the child were at that period married to another,
' such child is incapable of legitimation/ &c A prior marriage, ac-
cording to this authority, prevents the operation of the fiction, be-
cause it incapacitates the parties from marrying, and renders their
marriage legally impossible at the period when, by the fiction, it is
held to hare taken place. But the parties are not incapacitated from
marriage, nor is their marriage at the requisite period rendered im-
possible, by their residence and the birth of the child in England.
It will be observed that Mr. Erskine, in stating and approving of
the exception which he mentions to the doctrine of legitimation per
subsequens matrimonium, rests bis opinion entirely on an inference
arising from the legal fiction, that the marriage is held to have been
contracted when the child was begotten ; whereas I could rather wish
that he had rested it on those solid grounds of justice which I have
mentioned. Fictions of law seem to have been the invention of an
early and rude age. They were resorted to in those ages in order
to accommodate new rules to preconceived notions of saw, to re-
concile an apparent or imaginary inconsistency betwixt new regula-
tions introduced on views of equity and expediency, and the system
of law as existing before their introduction*
In such cases, and assuredly as it appears to me in the present
case, the legal fiction is not the foundation of the rale- The rule is
founded on principles of justice or expediency ; and the fiction is re-
sorted to, merely to explain and reconcile it to the principles *r no-
tions of the lawyers of the time. It may therefore be doubted how
far it is reasonable in every case to hold that the rule is to be con-
COURT OF SESSION. 647
trolled of defeated in its operation by arguments derived, not from
die principle on which it is founded, but from the legal Action with
which it wae at its introduction unnecessarily encumbered 5— I aay
uniieeessarily, because in later times our lawa have no reference
to any such fictions. Thus by the act 1596 it is declared that
certain deeds granted by a person within a period of sixty days prior
to his bankruptcy shall be null. If this law had been one or two
centuries older, we should probably hare been told that then was a
legal fiction by which the person was held to be bankrupt at the
date of the deeds so granted by him ; and then there might hare
been room to maintain that he was not in a situation in which he
could have been made bankrupt at that period,, and that therefore
his deeds could not be set aside.
It is the rule of our law, founded on views— «nd I think they are
not mistaken views— of expediency, that natural children shall be
legitimated by the subsequent marriage of their parents. But this,
appearing to be inconsistent with the previous general doctrine that
children born in wedlock only are legitimate, some of our comment-
ators resorted to a fiction to reconcile the inconsistency ; and Mr.
Erekme mentions this fiction as die ground of the exception which
he points out. But the exception, if it be one, as I think it is,
which the law would recognise, is an exception founded on manifest
principles of Justices-justice to the children who may be born of the
prior marriage * and it therefore ought to be received, and would be
received, independent altogether of the legal fiction, from which Mr.
Erskme derives it. Availing himself of this, and looking at the
legal fiction alone* the pursuer maintains that it is to have the effect
of controlling the rule, and defeating its operation* in a case to which,
but for the arguments derived from the legal fiction alene, the rule
would certainly apply. A cbUd born in Scotland of Scotch parents
in 1815 whl undoubtedly be legitimated by their subsequent mar-
riage* But if the same parents happen, for an intermediate period,
to reside and to be domiciled in England, and a child is there born
to them in 1816, the child, according to the present argument, can-
not be legitimated \ because, by the law of England, there is no
room for the fiction, that they were married when the child born in
shut country wns procreated. Such, perhaps, are the consequences
that may naturally be expected to follow from permitting the rules
of law to be explained and controlled by arguments derived from
fictions, resorted to when the rules were made, to accoutmodate them
to the notions of law prevalent at the time, and to reconcile men
mora easily to their introduction.
It is said that the character ci bastardy in England is indelible.
But why is hT indelible ? Because legitimation per subsequens matri-
fdonium- has no place in the law of England ; and because, such being
the law cf England, a subsequent marriage in Scotland cannot have
the eflta* of legithnathig a driM betnv in England* Mow, let the
648 CASES DECIDED IN THE
process of reasoning by which this proposition is supported be it-
tended to. It will then appear that the only ground for denying
such effect to the subsequent marriage in Scotland is, that the hw
of this country is said to be founded, or to proceed on, a fiction which
cannot operate extra territorium. Thus, in whatever way the pur-
suer may shape his argument, it is manifest that the whole of it is
to be traced to the legal fiction. His reasoning consists, not in
showing that our-law in its principle does not apply to this case, bat
in endeavouring to show that its application to this case cannot easily
be reconciled to a useless fiction, by. which, for the reasons formerly
mentioned, I humbly presume to doubt whether the law ought at all
to be controlled.
But should those general considerations which I have taken the
liberty of suggesting be entirely disregarded, a very important point
remains for inquiry, — namely, whether Mr. Erekine, and the other
writers whom he has followed, are right in stating that, by the law
of Scotland, the doctrine of legitimation per subsequent matrimo-
nium really proceeds on the fiction so often mentioned. Now in
this I apprehend tbey are quite mistaken. The civil law forms, in
truth, the law of Scotland upon this point. But in the civil law no
mention is made of the fiction. This was only resorted to at a later
period by the canonists, whose authority with us is of a secondary
nature. This, then, is not the case of a fiction coeval with the rule
of law, and on which die rule at its introduction was declared to rest
Here the law, as originally promulgated, stood on its own proper
principles of justice and expediency ; and the question is, Whether
this law is to be controlled by a fiction not countenanced by the
civil law in which the rule originated, and which is in truth our law,
but introduced at a later period by the canonists ?
It is worthy of remark, that the law of France, if I am rightly in-
formed, has no reference to this fiction. But legitimation per sub-
sequens matrimonium has place in the law of France, aa well as in
the law of Scotland. In both countries the doctrine is confessedly
derived from the civil law ; and when it appears that the civil law
gives no countenance to this fiction, and that it is not received at all
into the French law, it does seem unreasonable to m*i«»»»i»» that it
is to regulate or control the whole of our doctrine on the subject.
But admitting Mr. Erskine's doctrine, and the grounds on which
he rests it, to be perfectly sound and unexceptionable, it must be
carried a great deal further, and greatly extended indeed, before it
can support the pursuer's plea. Mr. Erekine puts the case of a mar-
riage subsisting at the time the child is procreated, which made it
legally impossible for its parents then to marry, as forming an insur-
mountable bar to its legitimation by a subsequent marriage. Here
there existed no such legal impossibility. It is said that Jthe parents
were resident and domiciled in England at the time of the defender's
procreation. There was nothing, however, to prevent them from
entering into a lawful marriage in England at that period.
COURT OF SESSION. 649
It is an invariable maxim that no fiction shall extend to work an
injury. But, on the other hand, it may be held as a general maxim,
that a fiction shall be so far extended as to accomplish its object, and
to work out the rule with .a view to which it was adopted. From
the marriage of the defender's parents in Scotland, there arises a
legal fiction that they were married at the time the pursuer was pro-
created ; and, agreeably to this fiction, it appears to me that their
prior marriage must be feigned to have taken place in Scotland also.
The fictitious marriage derives its origin from the actual marriage-—
the one is the creature of the other ; and in whatever country the one
took place, the scene of the other must be laid in the same country.
The actual marriage was a Scottish marriage— the fiction is a Scot-
tish fiction, necessarily consequent on the marriage ; and it is there-
fore in Scotland that we must hold the fictitious marriage to have
been celebrated. It is no doubt asserted, and truly asserted, that the
defenders parents, in point of fact, were not in Scotland at that
period. But contra Actionem juris non admittitur probatio* If it be
a fiction of law that the parties were married in Scotland, it is of no
more importance to prove that they were not in Scotland, than to
prove that there was no actual marriage*
On the whole, to return to the questions formerly proposed, I state
it as my opinion, in answer to the first, that the character of bastardy
is not indelible ; and in answer to the second, that the legal effects
of a marriage contracted in Scotland cannot be affected or defeated
in compliance with the laws . of any foreign country in which the
parties may have been, or . continue to be domiciled. I proceed
mainly on the principle that the lex Joci contractus must be the
governing rule in this case*
Lord Balgray. — The case of Mr. Ross is of importance, and is at-
tended with considerable difficulty. The facts are few, and are but
little controverted by the parties. t
Mr. Alexander Ross was a native Scotchman. By inheritance
he was entitled to heritable property in Scotland ; and by settlement
he became proprietor of a large estate, upon which he had a resi-
dence* Occasionally he came to Scotland to visit his friends, and
to exercise the rights of a Scotch landed proprietor. His more con-
stant residence was in England, where he carried on to the day of
his death a very extensive business.
In June 1815 Mr. Alexander Ross came to Scotland with the
mother of the defender, evidently with the. avowed purpose of cele-
brating a regular marriage with her, and of thereby legitimating the
defender, born in 1811, according to the law of Scotland A resi-
dence followed of some eight or ten weeks at Cromarty-house, the
. family mansion.
Mr. Alexander Ross having died in 1820, tbe question arose as
to the legitimacy of the defender, and his right of succession to the
estate of Cromarty.
650 CASES DECIDED IN THE
Although the frets be not complicated or numerous, yet they do
give rise to such views of lew as to occasion considerable perplextty.
The question is of that nature, that it is apprehended it cannot be
solved, or justice done to the parties, by resorting to any one single
principle. Several principles of law must, it is thought, be admitted
in combination, as elements for the decision of the question.
1. This Court must be guided and directed 'by the lews and cus-
toms of Scotland) where they are acknowledged and admitted, how-
ever peculiar they may be. At a very early period, ' It was or-
4 dained that all and sundry the King's lieges of the realm*, live and
4 be governed under the King's laws and statutes of the realms si*
' lenarlie, and under na particular lawes, nor special privileges, nor
' be no lawes pf other countries or realmes ;' 1425, p. 48, and 1503,
c 79 ; Stair, b. i. tit. 1. § 16.
The comitas gentium does not authorise the adoption of any other
law which is adverse to the usages or the common laws of theTealm
of Scotland.
2. The question here is in eo for a pure question of status; but it
has reference, and the cjaim can only be competent in respect of
that reference, to a succession to a landed estate in Scotland ; and of
course the Court is bound to consider the question as in a competi-
tion of brieves, and to decide as a Scotch Jury, and to find sad de-
clare who is the lawful heir to the estate of Cromarty, according to
the laws and usages of Scotland.
8. The rights and privileges which are the adjuncts of heritable
property, depend upon the law of the country where it k situated.
The peculiarity of constitution of each country mainly depends upon
the mode of holding such property, and of its transmission either
inter vivos, or by succession. Hertius de Collisione Legum, sectio 4.
§ 9. ' QuUibet advena in percipieada bsaredltate, succedit nan a*
' cundum sum pereeiue, sed secundum jure terree Saxonue, etiam
' cujuscunque terne sit, sive Bavaria^ Erandae, Tel Suevices nationis.'
4. Mr. Alexander Boss was a native»boro Scotchman, and as such
entitled to enjoy all the rights and privileges which lis) law of Scot-
land can bestow; and if any pecufiarities regarding private rights do
exist in that law favourable to Scotchmen, of such no Scotch Court
of Justice can deprive him. That character and ttpat right are per-
fectly indelible ; and certain effects of that birthright, erten hi these
times, must be acknowledged by every Scotch lawyer to exist, and
did exist, at the hour of his death. '
The legitimation per subsequens matriuumium k near part of the
undoubted law of Scotland. It ia a privilege granted by the laws, of
which every Scotchman ia entitled to avail himseliv Had Mr. Rose
remained in Scotland after his marriage, no doubt could possibly
have been entertained about the matter. The pursuer confti have
pleaded in vain tot a Scotch Court or Scotch Jury that the character
of bastard stamped in England em the defender at his both w*e
delible.
COURT OK SESSION. 661
t
& It bu been said that lb* birth in England, when joined with the
eiraimstance that the parents were then domiciled there, stamps an
indelible character of bastardy, end which operates as a medium im-
pedinMtttiim, and prevents the legitimation per subsequent matrimo-
Bot this is truly a begging; of the question* The child is no doubt
illegitimate at its birth in England, but so it would have been in
Scotland also ; and we only make the bastardy indelible by assuming,
which is the matter in dispute, that it cannot afterwards be removed
by the operation of the law of another country* If this is a just
principle of law, then it will necessarily follow, that had Alexander
Rosa upon his marriage relinquished all connexion with England,
settled in Scotland ammo remanendi, and continued domiciled there
to the day of his death) the child could not have been legitimated ;—
in. short, that the domicile of the father does not regulate the status
of his family generally, but only his domicile at the moment of birth.
This does not appear to be sound law, and the case cannot be rested
on such a footing.
6. It is always to be kept in view, that marriage by the law of
Scotland is nothing but a civil and consensual contract ; and con-
sequently, in certain respects, it is open to those modifications which ^
apply to other common consensual contracts. In Scotland, Scotch
people living together as husband and wife will constitute a mar*
riage ; but the acting in this manner in another country where such
is not the law, will be no evidence of that tacit consent inferring
marriage ; and in such a case, there could thereby be no legitima-
tion per subsequens matrimonium.
lr The domicile of Mr. Alexander Ross was no doubt in England.
More properly speaking, it was the domicile of his trade or business.
From England being the place of domicile, it seems to be dear that
bis intestate moveable succession must be regulated by that law.
Hie personal rights and moveables are supposed to be there all con-
centrated; and it is presumed that it was his intention to destine
that species of property according to that law. All this is perfectly
consonant to reason, and to the now established principles of law re-
lative to moveable and personal property. But the whole of this
totally fails in the case of heritage* Presumed intention no longer
exists. The acquirer of heritable property must lay his account with
subjecting it to the rules and regulations of the country where it lies ;
and the law of that country in that respect cannot alter with the
varying residence of the owner.
Under obvious modifications, there appears to be no inconsistency
m two or more domiciles, although it may be necessary to fix on one
as deciding the moveable succession. There is no inconsistency in
one class of heirs taking the moveable succession by one law, and
another dais taking the heritage by another law; — that is to say, it
doea not necessarily fellow that the law of the domicile is to regulate
the succession to heritage.
663 CASES DECIDED IN THE
It has been argued that the opinion of Boullenoia determine* this
matter against the defender, Vol. I. p. 62. It is conceived that this
is rather an authority in the defenders favour. He states the case
of English persons having a child in England born in concubinage,
and coming to remain in France, anil being there married ; but he
adds, * sans s'y etre fait naturaliser,' and of cdurse that qualification
makes part of the elements of his opinion; and all must agree
with him that these persons were to be held as English people,
and subject to their own laws. But it seems necessarily to follow,
that if these persons had been naturalized in France, the legitima-
tion would have followed.
Now it may be asked, was not Mr. Alexander Rom a Scotchmaii
to every intent and purpose ? Did he not come to Scotland for the
avowed purpose of celebrating a regular marriage, and with the dear
and evident intention of legitimating bis son, the defender, and creat-
ing to himself a lawful heir, according to the laws and forms of his
native country ? He had no occasion to be naturalised, and the wife
became participant of bis rights.
8. In the last place, I humbly think that if tbe marriage was a
lawful marriage, which no one can dispute, all the legal consequences
must follow, and that in every other country. The contrary doc-
trine seems to be extremely anomalous.
Having due consideration to these principles of law, it would now
be necessary and proper to show their application to the circum-
stances of the present case ; but baring had an opportunity of seeing
the opinions of Lord Gillies, Lord Mackenzie, and Lord Medwyn,
and concurring with what has been stated by their Lordships, I con-
sider such a deduction to be unnecessary and superfluous.
Upon the whole, it appears to me that this case must be deter-
mined by taking into view various principles, and that the whole
combined must be taken under consideration ; and, by so doing, the
necessary result appears to be, that the defender- ought to be held
by the law of Scotland as the lawful heir of the late Alexander
Ross, and that the judgment of the honourable Commissaries is
right.
Lord Eldin. — In the declarator of bastardy at the instance of Mrs.
Rose, and Mr. Rose her husband, against George Saunders tbe
bastard, a minor, and his curators, various proceedings have taken
place.
Saunders was born in England on the 6th February 1811. His
mother, Elizabeth Woodman, cohabited with Alexander Ross for
some time. Ross was a Scotchman by birth, but he had left Scot-
land and lived in England for fifty years before his death, by which
he lost his Scotch domicile.
In the month of June 1815, Alexander Ross, with Mia. Woodman
and young Saunders, left their place of residence in England, and
COURT OP SESSION. 6S*
went to Scotland. It appears that their purpose was to celebrate a
marriage in Scotland, and they expected to legitimate young Saun-
ders as the son of Mrs. Woodman and Alexander Ross. The
grounds for such a pretended legitimation were very slight. Saun-
ders was a bastard by the law of England, which reached him both
by his rather and mother, and completed his bastardy on both sides
of the house. It would be in vain to pretend that such a state of
bastardy could be removed. Even supposing the parents could
marry, and by that marriage legitimate the children afterwards born,
no legitimation of the bastard already born could take place.
The Scotch marriage would have legitimated all the children after-
wards born of that marriage ; but it is another question, whether the
marriage in Scotland was effectual to legitimate the bastard born in
England four or five years before the marriage took place.
It does not appear that any thing has been attempted, by which a
difficulty so manifest can be counteracted. The question is, whether
a notorious bastard, settled and fixed in that state, without any re-
medy that can be suggested, is a person that can be legitimated and
relieved from the stain of bastardy ? There are, no doubt, cases in
which legitimation per subsequent matrimonium is allowed, and the
parties are relieved by the' lenity of the law. But, on the other
band, the law is in many cases enforced with much rigour, and to
the effect of fixing the bastardy upon the individual for his life, and
without the least hope of remedy.
But further, it is necessary to attend to the situation of the parents.
The mother was an Englishwoman and a -stranger, and the man,
woman, and child returned to England after the lapse of a few weeks.
It is evident that they had obtained no link or hold^of the country,
and still less had they obtained a status authorizing them to use the
privilege of their marriage one jot beyond the act of living together
as mam and wife from the time of their marriage, which left the bas-
tardy untouched, and the blot of many years bastardy remained with
them all. So far is this case from resembling other cases, in which
a marriage, though it is celebrated at die distance of twenty years
after the birth of a bastard, may yet be legitimated by the circum-
stances, which often occur to give such an advantage, although in
many other cases no such benefit can be had.
It has been pretended that the marriage between Ross and Mrs.
Woodman had the effect to put an end to all the difficulties arising
from the circumstances of the case. But this is a very gross error.
Ross and Mrs. Woodman made a marriage, and they obtained all
the legal privileges which belonged to that marriage. But it is a
great mistake to suppose that the parties gained any thing more by
their marriage than the privilege of living as man and wife, dated
from the period of the marriage, and without any retrospect to events
which had previously happened. It would' be m vain to say that
George Saunders did not remain a bastard* subject to all the disabi-
664 CASES DECIDED IN THE
Him winch necessarily followed his bastardy. Alexander Roam pre-
tended to be the father of the bastard ; but who can say that Saun-
ders was the legitimate son of Mr. Ross and Mrs. Woodman ?
Bnt this is not the worst that must follow the conduct of Alex-
ander Ross and his wife. There are disabilities in law for such cases,
to prevent the parties from forming other connexions.
No doubt it may happen that a long-continued bastardy in Scot-
land is removed by favourable circumstances. For example, if the
parents have always been domiciled in Sootlaad, the children may
be .legitimated by a Scotch marriage. But the present is a different
case. Saunders is exposed to numerous entanglements of the law of
England, from which, to all appearance, there are no means to make
him free. He is under the necessity of grappling with these diffi-
culties ; and if he cannot get rid of them, the law of Scotland will
avail him nothing.
If it should be possible to get rid of these questions, there is an-
other, which it is not so easy to encounter when it occurs. It has
been laid down as law by two derisions of the House of Lords, that
a man domiciled in England or in America* having an illegitimate
child by an English or an American woman, does not, by marrying
the woman, legitimate the child. What other hardships may attend
his situation may be uncertain* The question is, whether Mr. Ross
and Mrs. Woodman ware in a capacity to celebrate a legitimacy of
their son ? It is not easy to say bow all these difficulties can be
avoided.
It might have been practicable to make a mar/tage for young
Saunders when he came of age. But this is not the difficulty to be
combated. It is easy to make a marriage between two persons,
both of whom are at liberty to marry ; but it k not so easy to un-
ravel the conduct of Roes and Mrs. Woodman, sheltered in a long
aeries of. years by every connivance that occurred to them.
It is evident that this is a case which depends entirely upon the
law of England. Apparently the law of Scotland has no concern
with it. Mrs. Woodman, with her son, and Ross, were all of them
equally domiciled in England, and were subject to all the laws of
that country. Under these circumstances, it is quite in vain to pre-
tend that the parties, or any of them, bad power to escape Brum the
evident difficulties that surrounded them in their attempts to avoid
the English law.
The Judges of the Second Division delivered their opinions as
follows.
Loud Jitstice-Clbkk.— It appears to me extremely important, in
judging of this ease* to observe how it has arisen. In the —™~-
it k set forth that die pursuer was about to claim the estate of Cro-
marty, when she was opposed by a brieve ef service obtained by the
defender as lawful son of Alexander Ron^ wlnehahadenawaiai to
»*> The course of procedure adopted by the On
I
COURT OF SESSION. 655
perfectly regvJar, and is sustained aa far bade at Balfour, who, at
p. 289, observes 5— < Gif ony persoun, as hair, claimaony heritage fra
4 ane utber, and the defender alledgis thai the pursuer ia bastard and
* not gottin in lauchfdl marriage, this dame of heritage intented be-
' foir the temporal judge sail oeia and skip untill the questtoun of
1 haatardie be decided befoir the spiritual judge, and quhill it be cer-
1 tainlie knmwin quidder the purauvar ia bastard or lanchfullie be-
' gottin ; for it peitenia not to the temporal judge to decide in the
4 action and cause of bastardie.' There ia therefore no objection in
point of form, and I am authorised to state, that a doubt expressed
in Lord Craigie's opinion as to that has now been removed. The
pursuer bottoms her right to insist in the action on her being heir
of entail in the Cromarty estate ; so that virtually what we have
to decide, is a competition as to who is the heir of entail of Cro-
marty, a Scotch estate* The question, therefore, is to be decided
according to the principles of the law of Scotland* It is now finally
settled that the defender ia the eon of Alexander Ron ; and as there
ia no evidence of any existing impediment to bis marriage with Miss
Woodman, (as1>y Miss Woodman being a married woman,) we must
throw out of view the plea at one time set up, that the defender was
not Alexander Rom's son. The other ground is, that the defender
ia not legitimated by the marriage of the parental In judging of
this, we are bound to take into view the whole nets of the case,
and I hold them to be these :— Alexander Ross was born in Scot-
land—he inherited a paternal estate there. In 1786 he succeeded
as substitute in the entail of the Cromarty estate, and became a
freeholder in two counties. From that period be exercised the
privileges ci a rreeboldeiw-attended electkms— managed his estate
by a factor— and had all along a substantial hold of the estates
t3l the day of his death. In 1777 he married, and had several
daughters; and after the death of bis wife be formed a connexion
with Miss Woodman, by whom he had this son, whom we must
hold as from the first acknowledged to be his son. Professedly
fee the purpose of avaiKng himself of the privilege of the Scotch
law, lie came to Scotland in 1815 with Miss Woodman and his
son, and in three weeks afterwards was publicly and regularly
married by die minister of the parish. Shortly thereafter be went
to Cromarty, where be introduced ber as his wife, and the boy
aa hie son, and then returned to London, where he resided till
the day of his death, and where undoubtedly he was domiciled
to the effect of the distribution of his moveable estate. Then,
on these facts, can we listen to the objection made to the effect
of this marriage ? It is necessary to keep in view, that this was not
the ordinary case of two persons living in England all tbeit lives, '
and, having a distant prospect of succession to a Scotch estate, coming
so Scotland for a day to legitimate their children j for we have here
the father's constant and close connexion with Scotland ; and I am
658 CASES DECIDED IN THE
>
not moved by the cases put of parties coming to evade the law of
England, as this was a fair bona fide proceeding according to the
law of Scotland. The distinction is illustrated by the fact, that the
widow is now in full possession of her legal rights, without dispute
or challenge ; so that, in regard to one important consequence, effect
has not been denied to this marriage* It is impossible to think that
this case is to be determined by inquiring into the origin of the prin-
ciple of legitimation per subsequens matrimonium, or whether it
arises from the adoption of the fiction, that a marriage took place be-
fore conception ; but even if we adopt the fiction, where is the im-
possibility that the parents came down to Gretna Green ? There is
no impossibility in this ; and I deny that the fiction cannot apply.
Neither is it on the dicta of foreign jurists that we can decide this
case. It was admitted at the Bar that they could not push the doc-
trine of indelibility of status so far as the jurists do, and that it must
be received with innumerable qualifications. Take the case of
slavery, or the very strong one of English marriages which may be
dissolved in Scotland, if there is bona fides and no collusion, al-
though by the English law they are indissoluble, except by an act
. . of the Legislature. I cannot, therefore, go on the doctrine .of inde-
libility ; and the case is therefore brought to this, whether the con-
nexion of die parents, and the birth of the child having taken place in
England, are a bar to subsequent legitimation. I can see no authority
for holding that the place of birth has any thing to do with legitima-
tion. I cannot suppose that it has, otherwise our institutional writers
would not have overlooked it if there was any such bar. On the
contrary, Lord Bankton, at p. 121, lays down the rule generally
without qualification, and without reference to the law of England, that
marriage legitimates the previously born children of the parents. There
are only two cases. referred . to— -those of Sheddan and Strathmore.
Now, in looking over the case of Sheddan, is it possible to any that
it is a precedent for this ? The marriage there was entirely in -Ame-
rica. Sheddan was no doubt a Scotchman by birth, but he kept
up no connexion with. Scotland, and at that time had no property
there. It was therefore entirely different from this case, although
I entertain no doubt of the propriety of the judgment pronounced in
iu In the same way in Strathmore, the father was born in England.
He had Scotch estates no doubt, and was a Scotch Peer, and as
such attended elections, &c; but he did not come to Scotland
marry there— and take his wife to Glammis Castle. He married in
England, and claimed a British Peerage ; and although there had
been no qualification by the learned persons who delivered their
opinions in the House of Lords in that case, I could not hold it a
precedent here ; but the very learned person who then presided in
that House used words expressly to exclude its being supposed chat
he decided such a case as the present, lam therefore of opinion that
the bill of advocation must be refused.
COURT OF SESSION. 657
Load GleKlre.— As to the facts, the parties are in a great measure
agreed. If tbe parties had never been out of Scotland, there could
be no doubt but that the defender was legitimated. The pursuer,
however, rests greatly on this, that foreign jurists lay down tbe law,
that personal status, once imbibed, follows a man wherever he goes.
I rather think that this is a mistaken view of their opinions ; they
only say, that if no actus legitimus intervenes to alter the status, it
adheres to the person. It is no where said, that if a particular sta-
tus is acquired, which the law of the country says is indelible, it can-
not be altered by an act in a country where such status is not in-
delible. Even Boullenois' opinion in reference to the case assumed
by him goes on the circumstance, of the parties not being natural-
ized, in France, so as to entitle them to the benefit of the French
law ; and it implies that, if they were naturalised, the conse-
quences would follow. We know that all the subjects of the
united kingdom, are naturalized in every part of it, so that this de-
fect cannot apply to the present case. But I think, at' any rate, tbe
foreign jurists go too far, as their opinions will not apply to our prin-
ciple, that a slave cannot touch British ground ; and the pursuer surfers
by the maxim that statuta personalia do not follow, for she wishes
to introduce a rule of English law not known in any other Christian
or civilised state. In the case of Sheddan no act was done to alter
the status ; for we must give to marriage the effect of the law of the
country where it takes place ; and therefore in Sheddan's case it was
impossible, even in accordance with tbe opinion of foreign jurists,
that legitimation should take place, when that was not the effect of
marriage in America. As to the fictitious cases put of English par-
ties coming across the border to marry, with the view of legitimating
their children, and immediately returning, I would reserve my opi-
nion till they occur. If parties came here, having no estate, but only
coming to get decree of legitimacy, to be effectual in England, I
would dismiss the process, although I could not find that the de-
fender was not legitimate. We have, however, nothing to do with that
here. Tbe only question is, whether the defender has been legiti-
mated to the effect of succeeding to a Scotch estate ? for the pursuer
could' bring no declarator of bastardy except to that effect ; and I
have no difficulty in concurring with your Lordship.
Lord Pitmilly. — ? cannot bring my mind to detain the Court with
delivering an opinion at length ; for although in my notes I have
followed a different arrangement, yet every thing which occurred to
•me has been stated in the printed opinions, or those now delivered ;
and I shall merely say, that I entirely concur with your Lordship
and Lord Glenlee.
Lord Alloway. — I stand precisely in the same situation with Lord
Pitmilly. I have prepared very full notes ; but your Lordship has
expressed so well my opinion, that I shall not repeat it.
658 CASES DECIDED IN THE
fwii^'i Authorities.— Hnbcri Pnalect. Ds Contfcto LegOtt, 2. 1. 8. | 8. 10.
12 ; Burgundius. de Statutts, p. 10. 18 ; Yoet. de Stat, p. 187. 319 \ Hertins de
Selectis, &c. 1. 4. 8 ; Hofacker, Prin. Jur. Civ. 1. p. U2-14; Merlin, Vel. X.
§ 7 ; Voorda, de Statutis, 3. 47. in Bib. Fac. ; Pothier, Coutumes d'Orleana, 1. 1.
1. 7 > Cod. de Incolis, 1. 27. D. ad Municipalem, § 1 ; Mailer, Domicilium, § 17.
■ 64. 76, Forum Contr. § 93; Boullenois, Traits de H Personam*, &e. Vol. 1.
p. 62 ; Chriatophe, de Court* June 21. 1668, (Grassier*, Jownal de* Audiences,
No. & p. 283. inserted in the App. to Pursuer's Gate) ; Bentpde «• Mmstooe*
(3. Vesey jun. 198) ; SommerviUe, (5. Vesey jun. 758) ; Pedie v. Grant, June
14. 1822, (ante, Vol. J. No. 544. reversed 1824) ; Morecdmbe o. M'Lellan, June
27. 1801, (F. C.) ; Sheddan v. Patrick, July 1. 1803, (F. C.) ; Strathmore Peer-
age, March 1821, in H. of L.
Defenders' Authorities. — Pothier, Vol. III. p. 320; Menochius, p. 662; No. 16;
Schurff Cent. 2. 56. No. 4 ; Code Nep. Motiffii, Vol. III. p. 15. 16. and 61 ; Pe-
0 resins, p. 460, No. 26 ; Huber de Coaffictu Legum, $ 9. 12. 13. 15 ; Dietionnatre
dea Arrets, Vol. I. jk 777, and Vol. II. p. 546 ; 2. Craig, 13. 16 ; 1. Erik. 6. 52 ;
1. Bank. 5. 54 ; JjertinB de Collision* Legum, § 4. 10. 16.
Hornk and Ross, W.S» — Paterson and Law, W.S.— Agents.
No. 295. J. Nafikb, Pursuer.— Cftrirfiw*.
J. Thomson, I)efendxT.~—Jame9(m--Monieith.
May 16. 1827. This was a reduction qf a decree of the Judge Admiral against
Napier under special circumstances* The Court assoilzied from
the reduction.
1st Division.
Admiralty.
H.
Youngs, AtxouN, tad Ruthbrtorb, W. 8*~J<. Patisom, W. S. —
Agents
No. 296* A. Stewart, Suspender.— ^A-m* — Ivory*
A. B. Charger.— 2?roiwrff©\ t
Jtortxy Uee*ce<—8tat. 25. ft*, ill. c. 80.*- Held that an unHeen*ed agent act-
ing aa agent in his own cause, and who has got decree for expenses, cannot re-
cover more than his outlays.
May 16. 1827* Thb charger, a writer in Edinburgh, as assignee of a bill of
i Division. w^*c"1 Stewart was the drawer, having charged him for payment
Lord Meadow- of the amount, Stewart brought a suspension, in which the. Lord
bank. Ordinary found that the charger was an onerous bona fide holder,
& and that he was ' entitled to the whole expenses incurred by him."1
{Stewart presented a reclaiming note ; but not having got it antrked
by a principal clerk, the charger objected that k was incom-
petent, and therefore that the interlocutor of the Lord Ordi-
nary was final. The objection having been sustained, tba case
, returned to the Lord Ordinary ;. and the charger's account of
expenses hawing been t emitted to die auditor, Stewart objected*
#
COURT OF SESSION. 669
That as the charger bad not taken out his attorney certificate
during the currency of the account, he was disqualified from re-
covering any part of the expenses in terms of the statute 26th
Geo. III. c. 80.
To this it waa answered, That as he was acting as agent in
his own cause, it was not necessary that he should have a certifi-
cate ; and, at all events, ^that as he was claiming these expenses as a
party, and not as an agent, and bad been found entitled to them by
a final interlocutor, the statute was inapplicable. On the other
hand, Stewart maintained, that at least so far as regarded any
profits or remuneration for trouble, the charger could claim, them
in no other character than as agent, and therefore, at the very
utmost, he could only have right to his outlays.
The question having been brought before the Lord Ordinary,
who reported it to the Court, their Lordships found that the
charger was only entitled to decree for outlays.
Lobjd President,— I thiak the distinction is sound between the right
of ibis party to profits aid disbursement*. He may be entitled to
the latter, but the statute disqualifies him from recovering any pro-
fits aa an agent.
Lord Balgbay*-— K we were to sanction any other rule, it would be
attended with the most prejudicial consequences. Agents would just
take indorsations to bills, or assignations to documents of debt, as in
this case, and cany on actions in their own name, and so effectually
evade the statute.
Lord Craigie concurred.
Suspender's ^ttfAon/y— Robertson, June 29. 183G> (ante, Vol. IV. No. 466) ; Stat.
25. Geo. 111. c. 80.
J. Dickie, W. S. — G. Lang, — Agents.
Expenses. — In the case of Cotton t>. Manuel, relative to an urban tenement, the
defender having been found entitled to expenses, and the auditor having reserved the
question whether he had right to the expense of a lithographic . plan of the pre,
Buses, which he had made without the order of Court, their Lordships found, that
although it had been extremely useful, they could not lay the expense of It on the
opposite party.
660 CASES DECIDED IN THE
♦ " t
No. 297. - D- Johnston, Suspender.— D. qfF. Moncreiff—Pyper.
J. Duncan, Charger, — Jeffrey — Neaves.
#
Lien—Freight-A. Geo. IV. e. 24.— Held,-*-!.— That a ship-owner, by a voluntary
landing of goods, to be placed in a private bonded- warehouse, under the Ware-
• housing Acts, loses his lien for payment of freight ; — and, — 2. — That a delivery
* in docks,' in the meaning of the 4th Geo. IV. c. 24, § 83, which reserves the lien
for freight, does not extend to docks of the description of those belonging to the
Magistrates of Edinburgh at the port of Leith.
May 16. 1827. Undee the provisions of the Warehousing Acts, importers or
2d Division consigners of all sorts of legal merchandise into such ports as
Bill-Chamber, should be licensed by warrant from the Treasury, are entitled to
Admiralty, have such goods landed before payment of the King's duties, and
M'K* deposited in bonded warehouses belonging to private persons, and
licensed for this purpose, to be kept under the keys of the King's
officers, and of the proprietors or occupiers of the warehouses,
jointly. Goods so bonded are allowed to remain without pay-
ment of duties for three years ; and it is provided that a sale by
* written contract by the importer shall be an effectual transfer
without removal of the goods, although the warehouse in which
they are deposited should belong to the importer himself. It is
further provided by the statutes 12th Anne, c. 8, § 12, and 26th
Geo. III. c. 40, § 14, (now superseded by the 6th Geo. IV.
c. 107, § 16,) that every importer of goods shall land the same
within 14 days of the arrival of the vessel ; and that, in the event
of failure, it shall be lawful for the officers of the Customs to convey
such goods to the King's warehouse ; and if the duties shall not
be paid within three months after such 14 days shall have
expired, the goods shall be sold, and the produce applied, first to
the payment of freight and charges, and next of duties; the
overplus, if any, to be paid to the proprietor of the goods. And
by the 4th Geo. IV. c 24, § 83, (which superseded the previous
Warehousing Acts,) it is specially provided, ' That from and after
' the commencement of this act, all goods or merchandise which
* shall be landed in docks, and lodged in the custody of proprie-
' tors of the said docks, under the provisions of the said act**
(viz. the act 4th Geo. IV. c. 24. itself,) ' not being goods seized or
' forfeited to his Majesty, shall, when so landed, continue and be
' subject, or liable to such and the same claim for freight in fa-
' vour of the master or masters,' and owner or owners of the
* spective ships and vessels, or of any other person or persons
' terested in the same, from out of which such goods or merchant
c dise shall be so landed, as such goods, wares, or merchandise re-
' spectively were subject and liable to, while the same were on
COURT OF SESSION. 661
' board such ships or vessels, and before the landing thereof ; and
' the directors or proprietors of any such docks, at or in which
' any such goods or merchandise might be landed or lodged as
' aforesaid, or their servants or agents, or any of them, shall and
' may, and they are hereby authorized, empowered, and required,
1 upon due notice in that behalf given to them by such master
' or masters, owner or owners, or other persons as aforesaid, to
1 detain and keep such goods and merchandise, not being seized
* or forfeited to his Majesty, in the warehouses belonging to the
' said docks, as aforesaid, until the respective freights to which
* the same shall be subject and liable as aforesaid shall be duly
' paid, and satisfied," &c
The port of Leith is licensed under the warehousing system,
and there are extensive docks belonging to the Magistrates of
Edinburgh, who are proprietors of the harbour, and who, by
various acts of Parliament authorizing the building of these docks,
have power to levy rates and make regulations for the shipping
entering there. But it is not compulsory on any vessels coming
to the port of Leith to enter the docks ; nor are the vessels en-
tering the docks in the possession and under the control of the
Magistrates, as is the case in the various private docks in Lon-
don, which are under a regular organized system of management
by Boards of Directors, subject to the regulations of their respect-
ive acts of Parliament, and which vessels are compelled to
enter, (according to the nature of their cargo,) and are placed
in the complete custody of the proprietors, and obliged to
land their cargo in their order, according to the directions
of the proprietors, to be deposited in warehouses belonging to
them.
Into this port George Gibson and Company imported a
cargo of wood by a vessel freighted from the suspender John*
ston by a contract of charter-party, whereby the freighters agreed
to pay freight at a certain rate, * one-half in cash, and the other
* half in good bills at four months date from delivery .'
The vessel entered Leith docks on the 86th of September 1826 ;
and on the 5th of October the wood was landed and warehoused
under bond, being deposited in a wood-yard situated in the docks
belonging to the Magistrates of Edinburgh, and rented from
them by Gibson and Company, the importers themselves, one
key being kept by them, and the other by the King's officers.
On the same day on which the cargo was warehoused, one-half
of the freight was paid to Johnston in cash ; and for the other he
accepted a promissory note by Gibson and Company at four
months. This note (as to which it did not appear whether it
voi*. v. 2 u
£68 CASES DECIDED IN THE
had been negotiated or not) was dishonoured when presented for
payment on the 8th of February ; and, on the. 10th of March
thereafter, Johnston gave intimation to the manager of the
docks appointed by the Magistrates of Edinburgh, — to the
King's officer, keeper of the key of the bonded yard, and to Gib-
son and Company as tenants of the yard, that the freight was still
unpaid, and requiring them to detain the wood forpayment thereof.
On the 4th of April Gibson and Company were seques-
trated ; and Duncan, the charger, having been appointed trus-
tee,- presented a summary application to the Judge Admiral,
praying for warrant to sell the wood which was still lying in the
bonded yard, and to have it found that no lien subsisted over the
cargo for the freight, but that the proceeds should belong exclu-
sively to him as trustee. In this application appearance was made
for Johnston the owner of the vessel, who contended,
1. That the depositing of goods in a bonded warehouse was
not such a delivery as, at common law, relieved them from the
ship-owner's lien for freight ; and,
2. That under the special clause in the 4th Geo. IV. c 24, re-
lative to delivery in docks, reserving the lien for freight, not-
withstanding such delivery, his claim was still subsisting.
The Judge Admiral granted warrant of sale under reservation
of this claim, which he appointed to be argued in Cases, and he
thereafter found that ' the respondent Johnston has not either at
' common law, or under the authority of the Warehousing Acts, a
' lien over the cargo in question for payment of the one-half of
* the freight due to him.' The cause having been brought under
review of this Court by bill of suspension on the part of John-
ston, it was pleaded on his part,
1. That the warehousing of goods under the statutes was the act
of the law ; and as it could not be done on the application of the
ship-owner, his landing them, and depositing them in a bonded
yard, could not be considered as his voluntary act, and therefore
that his lien was not thereby extinguished, agreeably to the judg-
ment of the Court of King's Bench in the case of Wilson and
Keymer ; and further, that the warehousing of goods under bond
was not a delivery, but that they remained in custody of the public
officers for behoof of all parties having right therein, and con-
sequently that, at common law, his Hen subsisted equally as if he
had retained the personal custody of them in his vessel, as was
decided in the English case of Ward v. Felton,
£. That the clause of the 4th Geo. IV., reserving the right
of lien over goods delivered in docks, was quite general in its
terms, and could not on any sound principles of construction be
COURT OF SESSION. 663
confined to any particular description of docks, but must apply
to all docks embraced by the terms used in the act, which un-
doubtedly were sufficiently ample to include docks such as those
atLeith; and,
3. That if there had been no such delivery as to occasion the
loss of the lien, then the acceptance of the promissory note of
Gibson and Company could not extinguish it, both because a
' good bilT was what the charter-party stipulated for, while the
note given for the freight neither was a bill, (by which must be
understood a bill with the security of a name in addition to the
granter,) nor was it a good bill, seeing it had been dishonoured ;
and also because, if possession were to be considered as being stiJL
held of the goods by means of the keepers of the warehouse, the
lien must necessarily subsist till the contract was fully imple-
mented by actual payment of the freight.
To this it was answered,
1. That any delivery within 14 days after the arrival of the
vessel was necessarily voluntary, there being no obligation on the
shipmaster to part with the goods till the expiry of that period
when they might be taken to the King's cellars, subject to the
claim for freight ; and as to the case of Wilson v. Keymer, that
the delivery there had been a compulsory delivery under the
London West India Dock Act ; and that although goods oonded
under the former warehousing system (during the existence of
which the case of Ward v. Felton had been determined) might
be considered as in publica custodia, and not delivered, yet that
it was entirely different now, when they were allowed to be bonded
in warehouses belonging to private individuals, in regard to which
it was found in the case of Strachan, Jan. 21. 1817, (F. C.,) that
the lodging of goods in them constituted an actual delivery, so as
to divest the seller of his right of stoppage in transitu ; and that
this distinction was the more clear in the present case, where the
yard in which the goods were bonded was in the occupation of
the importers themselves.
. % That it was clear from the tenor of the clause in the 4th
Geo. IV. that it had reference only to those docks belonging to
private companies, and under the management of a Board of Di-
rectors, the vessels in which, with their cargoes, were actually in
the custody of the company, and was intended merely as decla-
ratory of what had been held to be the case at common law* or
was provided for by their respective local statutes in regard to
such docks ; and, ,
3. That the lien could only subsist till the contract of affreight-
ment was implemented ; but that that had truly been done on the
2u 8
664 CASES DECIDED IN THE
day when the goods were delivered, by payment of one-half of
the freight in cash, and the other in a bill accepted as a c good
' bill/ and at all events that, after possession was parted with, the
lien could not revive by the bill being dishonoured.
The Court, unanimously refused the bill.
Lord Justice-Clerk. — I am clearly of opinion that the Judge Ad-
miral's interlocutor is right. As to the plea on common law, there
is a fundamental error in the suspender's argument, in confounding
the provisions of the Warehousing Acts with those relative to docks ;
and it is clear that the docks of Leith stand on a system totally
different from the several London docks into which vessels are com-
pelled to enter, according to the nature of their cargo, and are under
the special care and charge of a company of proprietors. Vessels
there are also compelled to land their cargo, and it was therefore cor-
rectly ruled by Lord Ellenborough in the case of Wilson ». Keymer,
that as the delivery was compulsory, the lien still subsisted. The
Leith docks, however, are in a totally different situation, and I con-
ceive that the clause in the 4th Geo. IV. relates only to those docks
put under a system of regulations which does not exist at Leith. It
is therefore clear that no case can be maintained against the judg-
ment. Then there is also the circumstance of the hill having been
accepted ; and as I hold the delivery to have been voluntary, the lien
has been extinguished. If the ship-owner had retained the goods till
he was compelled to land them at the expiry of the 14 days, the
case would have been very different. As it is, we must adhere to
the interlocutor.
Lord Pitmilly*-— I am entirely of the same opinion. There is one
fact not cleared up, which, if the decision in the case of Horoecastle
be right, would of itself have been sufficient, viz. whether the bin
was negotiated ; but there is enough without it. There is a great
distinction between this and the case of Wilson and Keymer, where
the delivery was compulsory. Here it was voluntary, and the freight
was at the same time settled by bill ; and as to the notice to the ma-
nager of the docks, it was not given till the 10th of March, and die
goods were warehoused on the 5th of October ; so that it is quite
extravagant to suppose that the lien was still preserved.
Lords Glenlee and Alloway concurred.
Suspender's Authorities.— +1.}— Wilson, &c. v. Keymer, &c (1. Ma. and SeL 157);
Ward v. Felton, (1. East, 512) ; Whitaker's Law of Lien, 73; Brown on Sale,
457-— (3.)— Holt, 176 ; Stevenson v. Blacklock, (Ma. and Sel. 535.)
Charger's Authorities.— (1.)— Sweet v. Pym, (1. East, 4) ; Strachan, Jan. 21. 1817*
(F. C.)— <3.)— Hornecastle v. Farren, (2. Bell, 102); Cowe v. Simpson, (16. Yesey,
275.)
J. G. Babr, S. S. C— J. Murdoch, S. & G— Agent*
COURT OF SESSION. 665
A. MTablaxe and Others, Pursuers.— D. qfF. Mcmcrciff— No. 298.
More.
Magistrates of Edinburgh, Defenders. — Sol-Gen. Hope—
VAmy.
Harbour Dues— Stat. 28. Geo. HI. c. 58 —Held,— 1 .—That steam-boats carrying
passengers merely with their luggage fall within the description of * passage-boats,'
and are liable to pay rate only as such.— 2.— That they are liable in payment of
rates, in consequence of landing their passengers by means of a boat, or at a
pier erected by the owners within the limits of the port, although not haying the
benefit of the artificial piers belonging thereto.
By various royal charters, and particularly the Golden charter May 16. 1827.
of King James VI. in favour of the City of Edinburgh, there had gD Dmsiow.
been granted to the Magistrates the port and road of Leith, and Ld. Mackenzie,
likewise the port and road of Newhaven, c from St Nicholas M'K*
' chapel on the northern side of the town of North Leith, to the
* land denominated Windybrae,' together with ( the privileges,
' port-money, anchorage, &c. duties, &c. annexed to the said port/
A table of the dues exigible by the Magistrates from all vessels
coming into the harbours of Leith and Newhaven was drawn up
ia 1775, which table contained, inter alia, the following charge : —
' All passage-boats, ferry-boats, and pinnaces shall pay of beacon-
' age and anchorage, each time they come into the harbour, two
( shillings Scots ; but if they bring goods, &c. they shall pay as
' other vessels, according to the tonnage.9
The right to levy certain of the rates contained in this table, at
the amount charged, having been questioned, an act of Parliament
(28th Geo. III. c. 58) was obtained, which set forth ( that it would
' be of great public utility to ascertain the fees and other dues now
' payable, and hereafter to be paid, by the owners of ships and
' vessels resorting to the said harbour, basin, quays, piers, and
' docks ;" and therefore enacted that the Magistrates shall be en*
titled to levy, inter alia, in name of beaconage and anchorage, for
each time they come in, * for every passage-boat, ferry-boat, or
' pinnace, twopence sterling ; and for all vessels, whether ships,
' barks, or boats, (other than drag-boats, fish-boats, yawls, ferry-
1 boats, and pinnaces before specified,) one penny halfpenny for
' each ton of their burden.9
At this period the passage-boats consisted entirely of boats
plying with passengers across the Frith ; but, after the inven-
tion of steam-boats, several vessels of that description began to
ply, for the convenience of passengers merely, between New-
haven and Stirling and, Alloa, and the other ports in the upper
part of the river Forth. These boats having been prevented by
666 CASES DECIDED IN THE
the Ferry trustees, with the acquiescence of the Magistrates of
Edinburgh, from landing their passengers at the pier of New-
haven, the owners, at their own expense, with the permission
of the Magistrates, but under a reservation of all their rights,
erected a chain pier at Trinity near Newhaven, and within the
limits of the port as described in the royal charter. At this pier
the steam-boats landed and received their passengers with their
luggage, which constituted their only cargo, without any demand
being made for port-dues for some years. But, in 1824, the col-
lector having demanded payment of arrears of dues at the rate
of a penny halfpenny per ton, as being vessels ' other than yawls,
' ferry-boats, and pinnaces,' MTarlane and others, owners of the
steam-boat Morning Star of Alloa, raised an action of declarator
to have it found that their vessel, not making use of the Newhaven
pier or harbour, but of a pier erected at their own expense, was
not liable at all in dues, which were by the act of Parliament de-
clared exigible only from vessels coming into the harbour; or,
at all events, that as she was employed in the conveyance of pass-
engers and their luggage merely, she could only be subjected in
the payment of twopence per trip as a passage-boat within the
meaning of the 28th Geo. III., and not in three halfpence on
each ton as a vessel of burden ; and they contended, that as the im-
position of dues must be interpreted favourably for the public, the
term « passage-boats' in the act of Parliament must be construed
to mean boats carrying passengers merely, to whatever place,
(there being no restriction in the act in regard to that,) as contra-
distinguished from vessels carrying goods which were properly
charged by the ton, and which, from entering at the Custom-
house, afforded a means of ascertaining the tonnage not possessed
in regard to vessels carrying passengers merely.
To this it was pleaded in defence for the Magistrates,
1. That they were entitled to levy dues from all vessels landing
their passengers or cargo within the bounds of the port, whether
these vessels had the benefit of the existing artificial harbours, or
not; and,
2. That as, at the date of the table of 1775, and subsequent act
of Parliament, the regular ferry-boats, subject to all the strict
regulations regarding ferries, and now under the management of
Parliamentary trustees, were in truth the only passage-boats then
existing, the term ' passage-boat' must be construed to have had
reference to these merely, and not to a new class of vessels plying
in a character then unknown, and between places to which there
were at that time no passage-boats; and it was offered to be proved
that in practice even the regular ferry-boats were always charged
COURT OF SESSION. 66*
with the duty per ton when they went to a port which was not
within the ferry, even although they had merely passengers on
board.
The Lord Ordinary pronounced this interlocutor : — ' Finds
' that vessels ordinarily employed in moving, whether by steam
* or otherwise, between any port or ports in the frith of Forth
1 and the ports of Leith and Newhaven, solely for the conveyance
( of passengers and their luggage, and not for the conveyance of
' goods, may more reasonably be considered, in reference to har-
4 bour dues, as passage-boats liable to pay a certain sum for each
' trip, than as other vessels liable to pay dues in proportion to
' tonnage : But finds, on the other hand, that such vessels must
' pay dues as passage-boats, whether they enter the said harbour
( of Leith or Newhaven, or land the passengers within the limits
' of the harbours by means of small boats ; and finds that the
' chain pier at Trinity is within the limits of the port of New-
1 haven, and that the act of Council giving permission to erect
' that pier is so qualified, that it cannot be held to imply a dere-
' liction of the harbour dues to which the Magistrates of Edin-
' burgh had right from steam-boats landing passengers within
' the limits of that 'port ; and therefore finds that the pursuers, as
( owners of the Morning Star steam-boat, are liable for harbour
' dues as for a passage-boat entering the harbour of Newhaven,
' but no otherwise, for each time that the passengers by the
' Morning Star have been landed at the Trinity pier in time past,
' and must be so liable in future : Finds no further judgment ne-
c cessary in this case, and decerns and declares accordingly : Finds
' no expenses due to either party.'
Against this interlocutor both parties reclaimed ; — the pro-
prietors of the steam-boat, in so far as they were found liable in
dues, although the vessel did not enter the harbour, — and the
Magistrates, in so far as the steam-boats were held to belong to
the class of passage-boats ; but the Court adhered.
Lord Justice-Clerk. — I have a little hesitation as to the correct-
ness of the interlocutor. I do not dispute the propriety of levying
dues on vessels at this place. The landing passengers is enough
to subject them, whether they come to the pier or not. But my
doubt is in regard to whether they are onry to pay duty as
passage-boats. * In the clause of the act of Parliament, where two
different kinds of boats are mentioned, ' passage-boats' are omitted
in the parenthesis, (< other than drag-boats,' &c) which is a strong
indication that the clause meant to refer strictly to ferry-boats. In
common parlance, too, ' passage-boats' is used synonymously with
« ferry-boats.' The circumstance of steam being the medium of
668 CASES DECIDED IN THE
movement in these boats can make no difference ; but still it is a
new trade sprung up, not of conveying persons merely across the
Frith, but to all the districts accessible by water ; and I can scarcely
consider the vessels employed in such trade as railing within the
meaning of * passage-boats' used in the act.
Lord Glenlee — The proper meaning of * passage-boat, is a boat
whose cargo consists of passengers ; and as it is used in the act in
addition to ' ferry-boats,' I think other classes of passage-boats be-
sides those employed on the ferry must have been understood.
Lord Pitmilly. — I think the interlocutor right on the grounds stated
in it. The question must be regulated entirely by the act of Par-
liament, which divides all vessels into two classes— those of burden
which pay per ton, and those for conveyance of passengers which
pay by the trip ; and even ferry-boats pay by the tonnage when em-
ployed to carry, goods. The steam-boats, however, when they
merely carry passengers and their luggage, I conceive to mil within
the first class, and to be liable only for the rate per trip.
Lord Alloway. — I entirely concur. The act of Parliament is the
rule, and I cannot put any other construction^ on it than that given
to it by the interlocutor.
J. Forman, W. S. — MacRitchie, Bayley, and Henderson, W. S- —
Agents.
No. 299- w« Bruce and Others, Suspenders and Pursuers.— D. of F.
Moftcreiff—BosweU.
P. Sandeman, Charger and Defender.— Sol.-Gen. Hope—
VAmy*
May! 6. 1827. Harbour Dues— Stat. 28. Geo. III. c. 58.— This was an action
2d Division. * bumIm to the preceding one. Sandeman, collector of the harbour
Ld. Mackenzie, and shore dues of the city of Edinburgh, brought an action before
M'K- the Court of Admiralty against Bruce &c, owners of the Tug
steam-boat, for payment of arrears of dues, according to the rate
per ton leviable from vessels other than passage-boats, &c, during
a period prior to the erection of the chain pier, but when the steam-
vessels were not allowed to use the regular stone pier, and were ob-
liged to land their passengers in small boats at a temporary erection
of planks put up by the owners. The Judge Admiral decerned
for payment of the arrears at the rate per ton ; but in a conjoined
process of suspension and reduction brought by the owners, the
Lord Ordinary pronounced an interlocutor exactly similar to
that in the preceding case, and the Court in like manner adhered.
J. Forman, W. S — MacRitchie^ Baymy, and Henderson, W.
Agents.
COURT OF SESSION. 669
»
P. Scott, Suspender. — Cuninghame. No. 300.
T. Gillespie, Charger. — Baird.
Nautm Cauponet Stabutorii—Qath in Litem.— The mate of a ship belonging to the
Clyde having given up his situation at London, after the vessel's arrival there
from her foreign port, leaving his chest in the vessel to be conveyed round to the
Clyde with the vessel ; and the master having thereafter sent the chest on shore,
in consequence, as he alleged, of some smuggled goods having been found in it,
and having given it in charge to a tavern-keeper there without notice to the
owner-— Held, — 1.— •That he was responsible for it to the owner, who was not
obliged to accept an order on the person with whom it was deposited ;— and,— 2.
—That the owner's oath in litem as to the value was to be taken in preference
to the opinion of other individuals who had seen the contents after the master
had sent the chest on shore.
This was an action raised before the Sheriff of Renfrewshire May 16. 1837.
by Gillespie, who had been mate of a merchant vessel commanded 2d DlT1Blolu
by Scott, concluding to have the latter found liable in the value Ld. Mackenzie.
of a chest left in his vessel in the port of London, and which, it B-
was averred, he had engaged to carry round to Greenock, the place
of Gillespie's residence, and the ultimate destination of the vessel.
The Sheriff having, after certain procedure, allowed Gillespie
to give his oath in supplement as to the facts, and in litem as to
the value, and having decerned for the sum of £99 : 19 : 4 as
the value of the chest deponed to in his oath, Scott brought the
case before this Court by suspension.
From the proof taken in the Inferior Court, and afterwards in this
Court, it appeared that the vessel commanded by Scott had sailed
from Greenock for the West Indies,— that Gillespie had been ap-
pointed chief mate by recommendation of the owners, and that, on
her return in March 1818, she had put into the port of London :—
that while there, some smuggled sugar had been discovered on board,
on account of which Gillespie as mate, and a son of Scott's, were
fined by the Water Judge of Police : — that some days subse-
quent to this, the cargo having been completely delivered, Gilles-
pie gave up his situation, and set off for Greenock, leaving his
chest in the vessel, which was to sail for Greenock in about a
week, having given the key to one Ross, who succeeded him as
mate ; and it was deponed to by one witness that he had heard
Scott promise to Gillespie to take his chest to Greenock, without
making any charge for doing so. It further appeared that, a day
or two afterwards, the Custom-house officers had again searched
the ship, and had found in Gillespie's chest, which they caused
Ross to open, three stockings half full of coffee and a bottle of
castor oil, which they seized. Immediately after this, and, as he
alleged, in consequence of it, Scott ordered Gillespie's chest to be
taken on shore, and deposited with one Forster, the keeper of a
670 CASES DECIDED IN THE
tavern at Blackwall, of whom it turned out, contrary to Scott's
original averment, that Gillespie knew nothing, and on this occa-
sion he made the chest be opened, and had an inventory taken of
the articles it contained. He then sailed with his vessel for
Greenock, where Gillespie had previously arrived ; and the latter,
not receiving the chest, immediately raised this action before the
Sheriff. There was no evidence that Scott had intimated his hav-
ing deposited the chest with Forster before the action was raised ;
but, in his defences, while he denied having agreed to take charge
of the chest, and contended that he was not responsible for it, he
offered to Gillespie an order on Forster for delivery of the chest.
Gillespie refused to accept this order, and it afterwards appeared
that the chest had remained with Forster for about a year, and
was then taken from him by one Jewell, with whom Scott and
Gillespie had both lodged when in London, and who deponed
'that he had taken away the chest in consequence of a message
delivered to him by a person who had received a letter from Scott,
desiring it to be sent down to Scotland ; but he further deponed
that he had declined to be at the expense of sending it down, and
that he had, two or three years afterwards, told Gillespie that he
had the chest, but that Gillespie said he would have nothing to
do with it. Jewell also deponed, that when he saw the chest
opened at Forster's, the clothes were mouldy and damp, and that,
including a quadrant, the whole contents of the chest were not, in
his opinion, worth more than «£4; and Forster in like manner
deponed that he did not consider them worth more than £6.
On considering this proof, the Lord Ordinary remitted simpli-
citer, and the Court unanimously adhered.
Lord Glknlee. — I see no reason for altering. It was, no doubt,
wrong in the Sheriff to allow Gillespie's oath in supplement to sup-
port the testimony of the single witness as to the express undertak-
ing to convey the chest, of which there is certainly no sufficient evi-
dence ; but, independently of this, it is clear that Scott allowed the
chest to remain in his ship, and it must have been understood that
he was to cany it, although there is no evidence sufficient to show
that he agreed to do so without freight. But there is here no ques-
tion as to freight ; and Scott's allowing the chest to remain in his
vessel, eo ipso created an obligation to account for it under the edict.
Nor did the seizure of the trifling articles in the chest afford any
ground whatever for not fulfilling the obligation, or any excuse for
sending it on shore to a man of whom Gillespie knew nothing, and
opening the chest, and rummaging the contents, particularly without
giving Gillespie notice of his having deposited it with Forster. If he
had been alarmed at the seizure, he should have put the chest
COURT OP SESSION. 671
way or other in publica custodia ; but he was just as well entitled to
throw it overboard, as, of his own authority, to deliver it to Forster.
Then, as to the offer of an order on Forster after the action was
raised, Gillespie was not bound to accept of it; jt was Scott's busi-
ness to have the chest delivered in Greenock to Gillespie ; and, on
the whole, I am satisfied that responsibility was once attached to
Scott, and that he never fairly discharged it. As to the amount of
value awarded, the question has not been agitated, but the oath in
litem is the regular and proper evidence of value in such cases ; and
£29 is not at all an extravagant estimate of the contents of a chief
mate's chest, while the contents may have been deteriorated, or even
part of them taken out, for aught that appears, before they were seen
by the witnesses who depone to the value.
The other Judges concurred.
J. Kennedy, W. S^— J. Singer, W. S— Agents.
M. Miller and W. Carrick, Petitioners. — Rutherford — JJ0- 3qj#
Shaw.
J. Morrison and Spouse, Respondents.— D. qfF. Moncreffi—
Cuninghame.
Appeal.— Circumstances in which leave to appeal was refused.
The Court refused leave to appeal in the case noticed ante, May 17. 1837.
Vol. V. No. 198, in respect that there were subsequent proceed- division
ings which might possibly give rise to other appeals, and there- d,
fore that it was expedient to delay till the cause was exhausted.
A. P. Henderson, — Tod and Wright, W. S. — Agents.
W. Cunningham and Others, Suspenders. — A. iPNettt. No. S02«
J. Boyd and Company, Chargers. — J. W. Dickson.
Lord Ordinary refused a bill of suspension, in respect of an May 17. 1887.
oath, but found no expenses due. The Court adhered on the ln DlYIM01l.
merits, but altered as to expenses. Bill-Chamber.
Lord Newton*
A. Nairne, — Stewart and Sprott, W. S. — Agents. D.
672 CASES DECIDED IN THE
No. 303. Officers of State, Pursuers. — Sol. -Gen. Hope—Tait.
Magistrates of Brechin, Defenders.—/). qfF. Moncreffi—
Ivory.
Proceu— Reduction— Title to Pursue.— Held, where the merits in a redaction are
greatly mixed up with the question of title,— 1.— That it is competent to compel
the defender to satisfy the production, reserving his objections to the title ;—
and,— 2.— That the same course may be adopted in regard to an objection that off
the proper parties have not been called, those who have been called being proper
parties.
May 17. 1827. An alteration of the set of the Royal Burgh of Brechin having
2d Division, been made in 1820, by authority of the Convention of Royal
Ld. Mackenzie. Burghs, and the Magistrates having been elected in the years
MK* 1820, 1821, 1822, and 1828, according to the terms of the set thus
altered, the Officers of State, in 1824, raised an action of declarator *
and reduction, to which they called as defenders the Magistrates
and Councillors in office at the time, and which concluded for re-
duction of the new set as ultra vires of the Convention, and of the
elections of Magistrates following thereupon in 1820, 1821, 1822,
and 1823, and also to have it declared that the Convention of
Royal Burghs had no power to vary, alter, or modify the sets of
the Royal Burghs of Scotland, or any of them— that all warrants,
&c. granted by the various Magistrates elected under the new set
were illegal and ineffectual, and that the burgh was without a legal
Magistracy. To this action dilatory defences were given in by
the existing Magistrates and Councillors in their character as
such, pleading that the Officers of State had no title to pursue,
and that the proper parties were not in the field, in so far as the
pursuers had not called the Convention of Royal Burghs, who
were interested to support their powers challenged in this action—
the persons who had been in the Magistracy in the years 1820,
1821, and 1822, whose actings as Magistrates it was concluded to
have declared illegal — and the Trades and Guildry, who enjoyed
greater privileges under the new than under the old set ; and fur-
ther, it was objected, after the action had gone on for two years,
that the Magistrates of the succeeding years had not been made
parties.
The Lord Ordinary having pronounced an interlocutor find-
ing that * the defenders ought to take, and should be allowed to
1 take, a day to satisfy the production, reserving all objections to
* the title of the pursuers, or to the sufficiency as such of the par-
' ties now called as defenders to this action,9 and appointing the
cause to be enrolled for this purpose, the defenders reclaimed,
and contended that they were entitled to have a decision upon
COURT OP SESSION. 678
these dilatory defences before they could be compelled to satisfy
the production ; but the Court adhered.*
The Loan Ordinary observed in a note : —
The case of Sir William Forbes seems to afford sufficient authority
for this interlocutor, against which the Lord Ordinary sees no valid
argument. It might be dangerous to have an inflexible general rule,
that a defender must satisfy the production, reserving objections ;
but there seems no danger in allowing' this only in cases where it ap-
pears proper and safe to the Judge after discussion. The Lord Or-
dinary's reason for the order he has made in this case is, besides what
is contained in his former note, the great extent of the libel, and the
vast variety of different things it is calculated to effect. It is not
only an action for declaring null the alteration of the set given by the
Convention to the burgh of Brechin, (declaring also generally the
want of power in the Convention to alter, vary, or modify the sets
or constitutions of the Royal Burghs, or any of them, or to regulate
the mode of electing any of the office-bearers, Magistrates, or Council
of the said burghs, or any of them,) but also for annulling all the elec-
tions that have taken place annually since that alteration, and all the
acta of the Magistrates elected at these elections, writs, and criminal
warrants, and acts of intromission, being particularly named. In
this way, all the judgments pronounced by the Magistrates in civil
cases between party and party may be voided, though none of these
parties are here ; and in criminal cases all the sentences must be
void. So in police, all the acts done by the Magistrates may equally
be voided as lawless. The acts particularly of the Dean of Guild
may lose authority, on which acts houses may have been built, &c.
Now it seems to the Lord Ordinary that the Officers of State, in
this suit between them and the Magistrates under the new set for
one year, without the presence of any other party either as pursuer
or defender, may very well have proper defenders, and a sufficient
title to pursue in respect to some part of this, and yet not for all ;
and that it is not possible for the Lord Ordinary to define, before-
hand, bow much may be questioned here, or may not. This diffi-
culty applies even to the title of the pursuers. But further, the Lord
Ordinary cannot help having great doubts whether the objections to
the sufficiency of the defenders are not in pari casu, and must either
be decided or reserved along with those to the title of the pursuers.
He is not able to think that any person called as defender may be
compelled to satisfy the production in any reduction, or suffer decree
of certification, which seems the consequences of the view that such
objections are to be held objections on the merits. In this view, it
is obvious how exceedingly inconvenient it must be to attempt to
9 The Court decided in the tame way a similar case with the Magistrates of
Dundee.
674 CASES DECIDED IN THE
define a priori all that may or may not be questioned in this proem
before satisfying the production.. The Lord Ordinary cannot there-
fore yield his opinion as to the course of proceeding, but has pro-
nounced such an interlocutor as will enable the parties immediately
to obtain the opinion of the Inner-House.
Lord Pitmilly. — The only question before us is in regard to the
course of procedure, as to which there is no argument in the papers.
The expediency of the course adopted by the Lord Ordinary is plaia
and obvious. It is undoubtedly a competent procedure, and where
the party consents there can be no difficulty. The only difficulty
arises from the party not consenting, and the question is, whether
that which is not in itself incompetent can be done where the party
does not consent ? In Sir William Forbes's case I was against the
decision, and thought that we could not force a party to satisfy the
production until the objections to the title were decided.* But at
that case is now a precedent, and as I can have no doubt of the
expediency here, and the title being so completely mixed op with
the merits, I incline to adhere to the interlocutor. As to the ob-
jection regarding all the proper parties not being called, if it was
that there were no proper parties, it would necessarily take the lead
of every other question. It is, however, admitted here that there
are proper parties called ; but the objection is, that there are other
parties who ought to hare been called, and are not called. Now, it
appears to me that if there are certain proper parties called, so as to
make a proper cause depending, then the question if all the parties
are called is one on the merits, and this was decided in the case of
Mill v. Magistrates of Montrose, where on this point I agreed win
the majority.
Lord Alloway. — I entertain very great doubts on this question. The
most important consideration in every case is to see if all those par-
ties are called who have the interest to try the question. But here
I doubt whether the only parties called in this case have any interest.
They are persons who are now withdrawn from office, and yet they
are the only persons called, although the conclusions affect all the
prior and subsequent Magistrates, and likewise the Convention of
Royal Burghs, who have the most important interest of all to try
this great constitutional question regarding their powers. The ob-
jection is one of no process. It is said if any proper parties are
called the cause may go on. I cannot agree to this. I think it is a
question in limine, and that we must determine whether there be a
process, which I do not think there is till all the proper parties are
called. Then as to the objection of no title — suppose a title to ex-
clude were produced in a reduction, can a party be obliged to ©pea
* In that case, (Forbes v. Gibson-Craig, ante, Vol. III. No. 120,) * Lord Pitmilly'
is by mistake inserted instead of ' Lord Robertson/ as one of the Judges who voted
against the interlocutor.
COURT OF SESSION. 675
his charter-chest when he produces a title to exclude ? There may
be a class of cases where the question of the merits and the title are
so entirely the same, that the parties hare no interest to create a double
discussion ; but that is not the case here. In Sir William Forbes's
case the words of the remit of the House of Lords required the pro-
duction to be satisfied, and the majority of the Court proceeded on
their understanding of the meaning of the remit ; but as there is no
such reason here for deviating from the uniform practice, I think the
preliminary objections should be first decided.
Lord Glenlee. — When the objection to the title is, that the conclu-
sions are of such a nature that the pursuer cannot insist in them, I
do not see how it can be tried till the production is satisfied, at
least without assuming that it is. satisfied. When the objection is
limited so as to be unconnected with the merits, it may properly be
decided before production, as if it was in the present case that the
Crown had no title to bring an action about Royal Burghs at all. In
audi a case, the defender might be entitled to insist on a decision
on the question of the title, as being an action as to a matter with
which the Crown had nothing to do. But as the objection to the
title here has reference to the nature of the conclusions, the Lord
Ordinary might properly have repelled it in bo far as regarded the
title to call for the production, reserving, all objections to the title in
respect of the conclusions ; and what his Lordship has actually done
is more favourable for the defenders than this would have been. As
to the other objection of the proper parties not being called, I agree
with Lord Pitmilly. We cannot know whether the other parties
have such a necessary interest as to require that they should be
called till the process proceeds a little, and till we see more of the
nature of the action than we can do before the production is satisfied.
On the whole, I am inclined to adhere.
Lord Justice-Clerk. — It does not appear to me that any thing is
done by the interlocutor prejudicial to either party. It is still com-
petent for the defenders, after the production is satisfied, to show
that the pursuers have no title, and that the proper parties are not
before the Court. This is not at all the case of a title to exclude,
and it is not insisted that the Crown has fundamentally no title in
such matters as this action regards ; for if so, I would agree with
Lord Glenlee that the objection would be preliminary. But consi-
dering the nature of the action, and how the title and merits are
mixed together, and having the cases of Sir William Forbes v. Gib-
son-Craig as to the objection to the title, and of Mill as to the ob-
jection of the proper parties not being called, as precedents, I do
iiot think that we ought to interfere with the course of procedure
adopted by the Lord Ordinary.
Pursuer*' Authorities.— Gibson-Craig v. Sir William Forbes, June 24. 1824, (ante,
Vol. III. No. 120) ; Mill, Jan. 28. 1824, (ante, Vol. II. No. 618.)
F. Wilson, W. S. — J. Irving, W. S. — Agents.
676 CASES DECIDED IN THE
No. 304. Duke of Buccleuch and Queensbeeey, Pursuer. — Jeffrey-*
Dundas.
A. Griebson and Others, Defenders. — D. qfF. Moncreiff—
Henderson.
Duke of Queensberry's Executors, Defenders. — Murray —
Cockburn — Cay.
Landlord and Tenant-— Violent Profits.— The subrent payable to the principal
tenant of a farm is not conclusive evidence of the value against the tenant ia a
question of violent profits.
*
May 17. 1827. IN the actions of reduction and violent profits at the instance
- r of the Duke of Buccleuch against the Queensberry tenants, it was
3d Division. ,,, . , * i * i ** i- - i »
Ld. Cringletie. settled by an interlocutor of the Lord Ordinary in the case of
F. Halscar, which was taken as the leading case, that the violent
profits were to be estimated at such rent as the farms ' could
* reasonably enable a tenant to pay.1 Proceeding on this principle,
condescendences were given in by the Duke in the several cases,
in some of which he fixed on the subrent payable to the princi-
pal tenants, while in others, rejecting the subrent, he insisted on
a proof of the value of the farms, and several cases were accord-
ingly settled in the Jury Court by a verdict on evidence of the
value.
In the present action his Grace demanded that the violent pro-
fits should be calculated according to the subrents payable to the
tenants, and which they did not deny to have been paid by the
subtenants.
To this it was answered by the tenants and the executors of
the late Duke of Queensberry, who had sisted themselves as de-
fenders in the action, That the subrents were not necessarily to
be taken as absolute proof of what a tenant could reasonably pay
for the lands ; and they offered to prove that the subrents in this
case were greatly too high, and could not have been made from
•the lands, but, if paid at all, must have been paid by the subten-
ants from other sources.
The Lord Ordinary found * that in this case the subrent is
* not the conclusive evidence of what is a reasonable rent of the
* lands,9 and appointed the cause to be enrolled, c that measures
' may be taken for ascertaining the value.9 The Duke of Buc-
cleuch reclaimed, but the Court adhered.
J. Home, and J. Gibson jun. W. S«— Lamont and N*wiw, W.S.
-—Agents.
' COURT OP SESSION. 677
Dcjck of Bdcclkoch and Queeksbbrrt, Pursuer.— Jeffrey*- No. 305.
Dundas.
Mrs. Anne Pringle or M'Murdo, Defender.
Executors of the late Duke of Queenbberry, Defenders*-—
Murray — Cockburn — Cay.
Judicial Remit.— Circumstances in which a report by persons of skill, on a remit
before answer, was held not to bar the parties from resorting to other proof.
This was a case similar to thp preceding, (which see) ; bat it May 17. 1887.
involved an additional question. In an early stage of the pro- 2d DlTIBIolf#
ceedings, in relation to the claim of violent profits, and after an Ld. Cringletie.
interlocutor had been pronounced ordering a condescendence by - *•
the pursuer as to the amount of his claims, a minute was given
in by him to the Lord Ordinary, setting forth the rule for esti-
mating the violent profits, as found in the leading case of Hal-
scar, (mentioned in the preceding case,) and stating that it was
now necessary that it should be ascertained, by decreet of this
Court, what was the rent which the lands of the several tenants
would reasonably have enabled a tenant to pay from the period
when tbe bona fides was held to have ceased, till the tenant's re-
moval from the farms ; and ( that, for this purpose, the most
* expedient and satisfactory mode of proceeding might be, before
' the pursuer give in the condescendence ordered, that his Lord-
' ship remit to persons of skill to inspect the said lands, and report
' their opinion of the yearly worth thereof for the above-men-
* tioned period.' It was therefore prayed that his Lordship would
be pleased, before answer, to remit * to certain persons named to
4 inspect and survey the said lands, and report to his Lordship
* what, in their opinion, would have been the rent which the said
6 lands could reasonably have enabled a tenant to pay during the
* foresaid period.''
A remit was accordingly made, and a report returned, specify-
ing what rent, in the opinion of reporters as given on oath, the
several farms could reasonably have enabled a tenant to pay.
Thereafter the pursuer gave in a condescendence, in which he
estimated the violent profits according to the rents payable by the
-subtenants ; while the executors of the Duke of Queensberry, who
had sisted themselves as defenders, claimed in their answers that
the valuation of the reporters should be taken as the basis for
ascertaining the amount of violent profits.
The Lord Ordinary having found that neither the subrent nor
the report was conclusive evidence of what was a reasonable rent
for the lands, and having appointed the cause to be enrolled, that
vol* v. 8 x
078 % CASES DECIDED IN THE
measures might be taken for ascertaining the value, both parties
reclaimed,— the pursuer in so far as the subreftt, and the defenders
in so far as the report, was found not to be conclusive evidence
of the value ; and the defenders pleaded as to the latter point, that
the pursuer having consented to a remit to persons of skill, could
not now resort to any other mode of proof.
To this it was answered, That the remit was before answer,
and was not intended to determine definitely the value of the
lands, but merely to procure a report which might prove useful
as one mean of ascertaining what the value was.
The Court adhered to the Lord Ordinary's interlocutor.
Their Lordships stated that they had do intention to interfere with the
principles laid down in the cases of Rowat, &c quoted by the de-
fender, which they considered to be well decided, but not to tpply
to the circumstances of this case.
Defender*' Authorities— Cooper, Jan. 18. 1820, (F. C.) ; Thomson's Represents*
tives, Not. 12. 1824, (ante, Vol. III. No. 202) ; Dixon v. Monkland£anal Co.,
June 29. 1825, in H. of L. ; Rowat, Nov. 17. 1826, (ante, Vol. V. No. 10.)
J. Home, W. S^— Gibson and Hector, W. S. — Lamont and Newtoh,
W. S. — Agents*
No. 306. W. Hunter, Pursuer.— D. qfF. Moncrciff—Maitiand—
Whigham.
Executors of Duke of Queensbeeby, Defenders.— Jeffi cy--
Murray— Cay.
Procen— Judicial Remit. --Held, in special circumstance*, that a tenant whose lease
had been reduced as ultra vires of the granter, and who, in his condescendence in
an action of damages against the granter's executors, had agreed to estimate the
damages according to a valuation made on a judicial remit by two perasns of
skill, was entitled to enlarge his claim in a revised condescendence.
May 17* 1827. This was a special case. It was an action of damages at the
2d Division. instance of one of the Queensberry tenants, whose lease had been
Ld. Cringietie. reduced, as contrary to the Queensberry entail, against the exc-
F* cutors of the granter, and who had in his condescendence agreed
to estimate his damage according to a valuation as to what was
a reasonable rent for his farm, made by two persons under a judi-
cial remit from the Lord Ordinary. Before, however, the con-
descendence was answered, be lutd declared his intention not to
abide by it ; and having, in his revised condescendence, enlarged
his claim of damages, the question came to be, whether, under
the peculiar circumstances of the case, he was entitled to do so,
and to insist on other proof of the value of his farm being taken. ^
and whether the objection to his doing so had not been
from in the course of a correspondence with the executors.
COURT OP SESSION. 679
The Court, considering that the judicial remit in this case was
not intended to hind the parties as to their claims of damages,
and that the defender had not closed with the offer in the pur-
suer's condescendence, found, on the report of the Lord Ordinary,
that the pursuer was not barred from enlarging his claim in his
revised condescendence, and remitted to his Lordship to proceed
accordingly.*
The Court, as in the preceding case, expressly stated that it was merely
in consideration of the special circumstances that they held the
principles of the decision in the case of Rowat (ante, Vol, V. No. 10.)
not to apply ; but that there was no intention to interfere with ' the
principles laid down there, and in the other cases quoted by the de-
fenders.
F. and J. Brodib, W. S. — Lamont and Newton, W. S. — Agents.
R. Mackenzie, W. S. Pursuer. — Sol.-Gen. Hope — Ivory- No. 307*
Charlotte Fraser and Others, Defenders.— Cwiinghame.
Husband and Wife— Bill of Exchange*— A married woman, whose husband re-
sided abroad, having drawn and indorsed a bill which was accepted by the party
drawn on, and the indorsee having brought an action against both the drawer and
her husband, (neither of whom appeared,) and against the acceptor— Held that
the indorsee was entitled to pursue the acceptor ; and that, as decree passed in
absence against the drawer and her husband, the acceptor was bound to pay.
Mas. Hutchison, a married woman, who carried on business May 18. 1827.
as a milliner to a small extent in Inverness, and whose husband x«t Division.
resided in England, (but from whom she was not separated either Lord Meadow-
by contract or otherwise,) drew a bill upon Charlotte Fraser, who D '
accepted it. Mrs. Hutchison then indorsed it to one Geddes,
who indorsed it to the pursuer Mackenzie. Founding on this
bill, Mackenzie brought an action against Mrs. Hutchison and
her husband, and also against Fraser, concluding for payment of
the amount of the bill. No appearance was made for Mr. and
Mrs. Hutchison ; but Fraser appeared, and contended,
1. That as Mrs. Hutchison was a married woman, the bill which
had been drawn by her became, from the moment of its accept-
ance, the property of her husband ; and therefore, as she could
not lawfully indorse the bill without his consent, the pursuer had
no title to it ; and,
2, That the bill itself, as a ground of liability against Mrs.
Hutchison, being, like all other personal contracts of a married
* A similar decision was pronounced in another case of Dalziel v. the Queens-
berry Executors.
2x2
680 CASES DECIDED IN THE
woman without consent of her husband, null«nd Yoid, Mackenzie
could maintain no action upon it, and consequently she (Fnser)
was entitled to be assoilzied.
To this Mackenzie answered,
1. That as Mrs. Hutchison carried on business for herself, and
as her husband was abroad, she was entitled to transact as if she
were unmarried; and at all events, as neither she nor her husband
had made appearance, he was entitled to decree against them,
and consequently the defender was in perfect safety to pay to
him; and,
2. That in the situation in which Mrs. Hutchison was placed,
she had power to bind herself, and enter into valid contracts ; and
besides, the bill was a good voucher of debt against the defender.
The Lord Ordinary, after advising memorials, making up a
record, and advising Cases, assoilzied the defenders, but found
no expenses due.
Mackenzie having reclaimed, the Court, without requiring his
counsel to make any observations, aud after hearing the counsel
for the/lefender, altered, and decerned in terms of the libel.
Lord President.— I cannot see on what ground the Lord Ordinary
has assoilzied the Hutchisons. They have made no appearance,
and decree in absence must pass as a matter of course against them.
But if decree be pronounced against them, there is an end of the
case. Perhaps Mrs. Hutchison could not bind herself, but she could
draw for behoof of her husband; and as the decree fixes die liability
upon him, the ground-work of the defence is removed*
Lord Balgray. — The case is perfectly clear. Here all the parties
are brought into the field, and they all admit the debt. The de-
fender is as much liable as in the case of a cautioner for a minor.
Lord Craigie. — I am entirely of the same opinion, and, independent
of the decree against the Hutchisons, I think the defender is liable.
In the case of a cautioner for a minor, it Is not enough to say thai
the minor is not liable; but here the defenders' plea is just to the
same effect.
Pursuers Authorities — l.Ersk. 6.25; 2. Bell, 179; Churnside, July II. 1788,
(6063); Chitty on Bills, 36. and 34; Thomson on Bills, 537; 2. Roper, 1*8;
Baylcy, 39.
Defender** Authorities.— I. Erak. 6. 85; Baylcy, 40; 2. Bell, 171 ; Lennox and
Co., May 19. 1821, (ante, Vol. I. No. 21) ; 1. Campbell, 486.
R. Mackenzie, W. &<~-£. Macbean, W. S*— Agents.
COURT OP SESSION. 681
W. Wilson, Suspender.— Robertson. No. 308.
J. Dalzibl, Charger.— SAaw.
inaby refused bill of suspension, but Court passed. May is. i«R.
X Murdoch, — C. Fisher, — Agents. ln Diviiiow
Bill-Chamber.
Lords Macken-
zie and Core-
house.
Representatives of John Innes, Pursum<^efrey~Sk*ne. jjo. 309.
Earl of Peterborough's Executors, Defenders.— FuBerton
— Lumsden.
Warrandice, Construction of a Clause of. — Br lease dated May 18.1837.
the 28th of August 1794, (mentioned ante, V0LII.N0.8l,) entered 2d ^;ioJf
into by the late Earl of Peterborough and the late Francis i^crintfetie.
Russell, Esq., to which Mr. Innes subsequently acquired right, f.
the Earl let to Mr. Russell the lands and barony of Durris and
others, comprehending a large tract of country, amounting to
about 82,000 acres, * all lying within the county of Kincardine
c aforesaid, and in so far as the said Earl has or can pretend to
* the said subjects, he not being obliged to warrant or make out
' his title to any particular part, and that for the full period,
( endurance, and term of four times nineteen years, or the space
f of 76 years, and thereafter for the lifetime of the tenant or
c lessee in possession, and that from and after Whitsunday 1794,
' thenceforth to be peaceably occupied and possessed by the
c said Francis Russell and his foresaids during the whole fore-
' said space ; which tack or lease, and the quiet and absolute pos-
* session and enjoyment under the same, during thp whole space
* or term before mentioned, subject to the payment of the rents,
' and performance of the obligation herein after specified, he the
* said Earl binds and obliges himself, his heirs and successors
' whomsoever, to warrant to the said Francis Russell, and his
' heirs and successors, and assignees and subtenants above written,
* at all hands, and against all deadly ; excepting from the war-
' randicef the current tacks on the said estate,9 &c.
By agreement, of the same date with the lease, between the
Earl and Mr. Russell, the Earl agreed to restrict the rent, pay-
able to himself during his own life, to ,£800 yearly, and in con-
sideration thereof Mr. Russell bound himself to pay to the Earl
the sum of £15,107. 14s. Further, the Earl bound himself to
grant all such deeds as might be judged to be necessary by Mr.
Blair, then Solicitor-General, or by any other gentleman holding
688 CASES DECIDED IN THE
that office, for securing to Mr. Russell and his foresaids the pos-
session of the said lands and estate during the period of the
lease, for payment of the rents therein stipulated, c and in general
' the benefit intended for him and his foresaids by his agreement
' with the said Earl, as stated in the said lease and these presents,
' according to the spirit thereof, as it shall appear to the said
' learned counsel that the same should have been carried into exe-
( cution, though the mode may be different from what has now
' been followed, provided that the Earl shall grant no more in
' substance than he has done by the said lease and these presents,
* and the deeds hereby referred to, and that he shall in no case or
* event be obliged to restore the money paid to him, or any part
* thereof; without prejudice, however, to the usual effect and im-
6 port of the obligation of warrandice in the said lease contained.1
This lease having been set aside in an action of reduction at
the instance of a succeeding heir of entail,* Mr. Innes raised the
present action, (now insisted in by his representatives,) founded
on the warrandice in the lease, against the executors of the Earl
of Peterborough, the granter, who contended that the whole trans-
action was a fraud against the entail, of which both parties took
the risk, and that the clause of warrandice, taken altogether, did
not in reality infer an obligation to warrant.
The Court, on the report of the Lord Ordinary, found the de-
fenders liable under the warrandice in the lease, and remitted to
his Lordship to hear parties as to the amount of damage.
The Loan Ordinary observed in a note : — With respect to the dif-
• ferent clauses in the lease* he is of opinion that the one which ocean
first in that contract, declaring that die Earl shall not be obliged to
warrant, or make oat his title to any particular part of the subjects
let, when taken in combination with the broad one of absolute war-
randice of the lease, and the possession and enjoyment of it during
its whole space, can mean nothing but that such a large territory,
comprehending different baronies, having been let, it might happen
that some particular spot or part of it might either not belong t» the
Earl, or be encumbered with servitudes interfering with Mr. Baa-
sell's possession, in which case the Earl, did not mean to he hable
for warrandice; but that the above danse cannot be cuuaUued to
abolish and evacuate the other absolute warrandice applicable to the
whole* Such would be the construction of the two clauses in the
lease itself; but certainly there is another qualification of that war-
randice, arising from the cotemporaneouB agreement. The Lent
Ordinary's idea, however, is this:-— Lord Peterborough seam to
* See ante, VoL II. No. 31, and lanes ft. Moriavat, 1. Shaw's Appeal Cases, »•
COURT OF SESSION. 883>
have beea caught by tbe prospect of getting into bis hands imme-
diately a sum of £15,000, and, with this in contemplation, entered
into the lease. The obligation in that contract was imposed on him-
self, ' his heirs and successors whomsoever ;' but when he began to
reflect, that if the lease should be found to go beyond his powers to
grant, and that thereby he would be bound to repay the very money
which it had been his object to obtain, he wished to avoid that con-
tingency, which was to touch himself personally, and therefore got
inserted the clause, that, whatever might happen, he (but * not his
' heirs and successors whomsoever,* on whom the warrandice of the
lease was imposed) ' should in no case or event be obliged to restore
' the money paid to him ; without prejudice, however, to the usual
' legal effect and import of the obligation o£ warrandice in tbe said
1 lease.' When, therefore, that clause was obligatory on Lord Peter-
borough, his heirs and successors whomsoever, and he only declared
that it should not affect himself, without prejudice to its usual effect
and import, the Lord Ordinary can see no other meaning than that
the warrandice was not to affect himself personally, but was left in
full force against his heirs and successors whomsoever. It was to
the same effect as if his Lordship had said, ' I want £15,000, and
' my obtaining that sum is the cause of my contracting with you.
' You must take your chancer of the bargain, in so far as I am per-
' sonatty concerned ; but when I am gone, you may get and take
' what you can from my heirs and successors, in case the lease be set
* aside.' The Lord Ordinary can put no other construction on the
whole than this. He is quite aware of the rule of law, that war-
randice is not to be extended by implication ; but he is clearly of
opinion that warrandice, to a certain extent, was in this case intended
and given, and he has put on the whole tile interpretation which to
him seems just. He gave the parties this opinion after hearing them,
and would have pronounced an interlocutor to that effect ; but think-
ing, in a complex question like this, it would be doing them and the
Court more justice to enable their Lordships to judge of it on Cases
than on a hearing by a note, he agreed to give Mr. Innes the benefit
(if any be) of his opinion, by communicating it in a note prefixed to
an order for Cases.
■
The Judges concurred.
T. Innes, W. S. — M'Kenzie and Innes, W. S. — Agents.
684 CASES DECIDED IN THE
No. 310. B. Bannatynk and Others, Petitioners.— Cowan.
Miner Curator Bonis.— The appointment of a curator bonis being remedium ex-
traordinarium, the Court will not interfere where the minor can choote hit own
curators.
May 19. 1827. On the 21st of February 1896 the Court granted warrant of
IstDi si w 9a^e *n a Process °f cognition and sale of the estate of Coudam
p. at the instance of the petitioners, at which time some of the peti-
tioners were pupils, and a factor loco tutoris bad been appointed
to them ; but, as they had now arrived at puberty, they applied
for the appointment of a curator bonis to concur with them in
the sale, and in granting a title to the purchaser. The Court,
however, having expressed an opinion, that as it was competent
to the minors themselves to choose curators, and as an appoint-
ment of a curator bonis was a remedium extraordinarium, the
application was incompetent, the petitioners withdrew the petition.
Hunter, Campbell, and Catbcart, W. S. Agents.
No. 311. Irving, Suspender. — 6. G. Bell.
Burnett, Charger.— Gillies.
JVoceat .— »Held incompetent, after a bill of suspension has been passed, and the
letters expede, to reclaim against the interlocutor passing the bill,— the remedy
being a petition and complaint to recall the letters, if they have been irregularly
expede.
May 19. 1887. Ibvino having presented a bill of suspension and liberation,
a -" the Lord Ordinary, on advising x answers, passed it. Irvine's
1st Division. a . • j« A i %_ j ,7 x j 7H
Bill-Chamber. ageDt thereupon immediately borrowed the process, and got the
Ld. Corehouse. letters expede, in virtue of which Irving was liberated. Burnett
then presented a reclaiming note, to the competency of winch it
was objected, That as the letters had been expede, the case was
now out of the Bill-Chamber.
To this it was answered, That as Burnett was entitled to 24
hours at least from the period of passing the bill before the
letters could be expede, an irregularity had been committed in
doing so, and therefore he was still entitled to be heard.
The Court refused the note as incompetent
Lord Baloray. — As the letters have been expede, and have passed
the signet, we cannot do any thing in this process in the BiD-Chamber.
If there has been any irregularity, the proper course is to present a
petition and complaint, praying to have the letters recalled.
Lord Corehouse.* — I am entirely of the same opinion.
Lord Craigib concurred.
• In consequence of the absence of the Lords President and Gillies, Lord Core-
house was called in to form a quorum.
COURT OF SESSION. 68ft
J, Hat, Pursuer. — Neaves. No. 312*
B. Grant and J. Smith, Defenders.—/. W. Dickson.
Proof —Onus ProhandiSale.—A party having bought certain goods, and, after as?
action had been brought for payment, having returned part of them to the trustee
on the seller's sequestrated estate, to be sold by him — Held that the onus of prov-
ing a condition that the price effeiring to the goods so returned was to be consi~
dered as thereby discharged, lay on the purchaser.
Hat, the trustee on the sequestrated estate of Elder, carver May 19. 1897.
and gilder in Edinburgh, having raised an action against Grant *,„ division.
and Smith for payment of certain goods purchased by them from Lord Medwyn.
Elder, they returned part of the goods to Hay, who received them, F*
and afterwards sold them, deducting from his claim against the
defenders the price obtained for the goods so returned, but
without giving any discharge of the action, or a receipt in full
as to the price of these goods. The defenders, however, con-
tended that they were entitled to be assoilzied from the demand
for the price of the goods returned, on the ground that it was
intended by the parties to put an end to the bargain as to these
goods.
The Lord Ordinary found, ' That the onus of proving the al-
* legation that the goods so returned were returned and received
* in full of the pursuer's claim against the defenders, except as to
' the goods not returned, lies upon the defenders; and as it is
* stated by their counsel that they have no proof to offer in sup-
' port of this allegation/ his Lordship decerned for the amount
as restricted by the pursuer; and the Court, without calling on
the pursuer's counsel to answer,, unanimously adhered.
J. Smith, Agent.
W. Durham, Advocator. No, 313.
Helen Guthrie, Respondent.
Proof— Semiplena Probati t^Ftfiofcoft.— Circumstances held not sufficient to amount
to a semiplena probatio in an action of filiation.
•
This was an action of filiation and aliment of a bastard child, May 19. 1887*
brought by the respondent Helen Guthrie against the advoca- $D division.
tor Durham before the Justices of the Peace of Ayrshire. From Lord Medwyn.
the evidence led in the Inferior Court, it appeared that Durham, M'Ka
who was a mason in Girvan, had been employed, in the spring of
1824, in building a house in Girvan, close to that of the respond- '
ent's father, where he used frequently to go to light his pipe, and
to sit sometimes in the evening after his work was over, the re-
spondent being at the time resident with her father ; but no per-
686 CASES- DECIDED IN THE
son who had seen the advocator and respondent together, ever saw
any familiarity or indecent behaviour betwixt them. One wit-
ness, however, deponed, that on an evening in April 1824, after
quitting work in Girvan Mains quarry, where.the advocator also
was working, he saw the advocator coming along the road from
the quarry towards the main road, but that he stopped within the
hedge on the side of the main road ; — that, in about a quarter of
an hour, he observed a woman coming along the main road, who
turned down the quarry road, and was joined by the advocator,
and that they both walked down the quarry road towards the
quarry ;— that the witness, thinking, from the plaid thewomanwore,
that it was one of his own daughters, walked slowly along the
road towards Girvan, stopping occasionally that they might over-
take him, and that, about an hour after he first saw them, (being
now between seven and eight o'clock,) he saw the advocator, ac-
companied by a woman, coming through some fields into the
main road; — that he watched at the end of a smithy till they should
pass ; — that he then recognised tlie woman to be the respondent
Helen Guthrie, but that he did not know whether she was the
woman whom he saw going down the quarry road with the advo-
cator, but she appeared to have the same dress, and she had on
a plaid which he thought belonged to his wife. It had further
appeared that the advocator, having been interrogated on a judi-
cial examination whether, in spring 1824, he was in company with
the respondent in a park in the farm of Girvan Mains, he had de-
clared that he was not, and that he never met or passed her to his
knowledge while he was returning from Girvan Mains quarry
to the town of Girvan.
On this proof the Justices found that there was a semiplena
probatio, and allowed the respondent's oath in supplement; but, in
an advocation, the Lord Ordinary found that she had ' not proved
* facts and circumstances sufficient to have entitled her to her oath
4 in supplement,9 and assoilzied the advocator ; and the Court ad-
hered.
Lord Alloway thought that the evidence adduced, coupled with the
advocator s denial of his having met the respondent, contrary to the
evidence of one of the witnesses, amounted to a semiplena proba-
tio ; but the other Judges concurred with the Lord Ordinary.
Gairdner and Robertson, W. S A. Kennedy, W. S.— Agents-
COURT OP SESSION. > «8T
J. Cochban, Suspender.— Robertson. ' No. 314.
J. Simpson, Charger.— Maidment.
This was a special case, in which the Lord Ordinary refused a M*y **■ ! W.
lull of suspension, and the Court adhered. . i«t Division.
Bill-Chamber.
Lds. M acken-
sie and Core-
houae.
No. 315.
J. Stuart, — J. Burn, W. S*— Agents.
Jakes and Isobel Chalmers, Pursuers.— -Baird.
D. Chalmers, Defender.*— More.
«
Clause Destination*— A father haying disponed, mortis causa, his properties in
several parcels to his children of a first marriage in liferent, and their issue in
fee ; and certain other parcels to the children of his second marriage, and their heirs,
in fee ; and having subsequently provided, that in case of any of his children pre-
deceasing him, his or her share should accresce to the survivors, but without
prejudice to the above destination ; and a child of the second marriage having
predeceased him— Held that her share fell to her brother as her heir.
Tjf e late Thomas Chalmers, who was proprietor of several Mav M« *W.
heritable subjects, had three children — James, Isobel, and Wil- in Division,
liam, by a first marriage ; and two— Jean and David, by a second Lord Meadow-
marriage with Margaret Johnstone. During the subsistence of this b^k#
marriage he executed, on the 5th of October 1811, a disposition
and deed of settlement, by which he disponed * to and in favour
' of my wife and children after named, and their lawful issues,
c my heritable subjects in the proportions and divisions follow*
4 ing, viz.
* To James Chalmers, (one of the pursuers,) my eldest son, in
' liferent, for his liferent use allenarly, and to the child or child-
' ren, equally, lawfully procreated of his body, in fee, all and
' whole certain tenements in the town of Glasgow, particularly
described.
< To William Chalmers, my son, in liferent, for his liferent
< use allenarly, and to the child or children, equally, lawfully pro-
' created of his body, in fee, all and whole/ &c.
c To Isobel Chalmers, (one of the pursuers,) my daughter, in
* liferent, for her liferent use allenarly, and to the child or child-
« ren, equally, lawfully procreated of her body, in fee, all and
* whole,' &c.
< To Jean Chalmers and David Chalmers, my daughter and
' son, equally between them, and their heirs and successors/ in
fee, all and whole, &c.
688 CASES DECIDED IN THE
'' Lastly, I hereby dispone and convey from me and my heirs,
' to and in favour of ally future child or children that may yet
* be procreated of the marriage between me and the said Mar-
* garet Johnston, and their heirs whomsoever, equally between
'them, whom failing, to and in favour of the said William ChaJ-
' meite and Isobel Chalmers, equally in liferent, and to their child.
4 ren in fee, all and whole,' &c.
After imposing certain burdens on his children, he introduced
the following clause :—
' Provided always, as it is hereby expressly provided and de-
4 clared, that in the event of the decease of any of my children
* without lawful issue, the share or shares of such deceaserorde-
* ceasers shall accresce and belong to the survivors or survivor
* of them equally in liferent, and- to their lawful issue in stirpes
4 in fee, but without prejudice to the former destinations.'
Subsequently to the execution of this deed, he had another
child by Margaret Johnstone.
Jean, one of the children of the second marriage, predeceased
her father without issue ; and he having died in 1815, her brother
David, as her heir, took up the subjects which had been disponed
to her. At the distance of several years thereafter, James and
Isobel Chalmers (who were now the only surviving children of
the first marriage) brought an action concluding to have it found
that, the share of Jean was, by the provision in the disposition,
destined to the survivors in liferent, and their issue in fee; and
tjiat they had right, accordingly, along with the children of the
second marriage, to these subjects. The question therefore came
"to be, Whether the destination to the heirs and successors of Jean
Chalmers was qualified by that subsequent provision ?
The Court, on the report of the Lord Ordinary, found that
the subjects belonged to. David as heir of his sister, and therefore
assoilzied him.
Their Lordships were unanimously of opinion, that it was perfectly
clear, under the qualifying terms, ( hut without prejudice to tie
' former destinations,' that the provision as to the shares of di*wi"g
children accrescing. to the survivors could not affect the previous
destination to the heirs of Jean Chalmers.
J. Macandrew, — W. and A. G. Ellis, W. & — Agents.
COURT OF SESSION. 689
P. Scott, J. Bonab, and Others, Pursuers. — More. No. 316.
' W. Drysdale, W. S. Claimant— Baird.
I>rocet+-~AfulHpiep(Htuiing,— Held, that although there was only one arrestment,
yet, as there were competing interests for a debt, a multiplepoinding was competent*
John Swobd, William Sword, James Latimer, and others, who May 23. 1827.
were joint owners of a vessel of which John Sword was the ship's- j D
husband, having got involved in a dispute, entered into a sub- Lord Meadow-
mission for the purpose of having it settled. The arbiter, on the bank*
7th of January 1819, pronounced a final decree, by which he fouQd
William Sword liable to John Sword in i?600, and Latimer in
about £160; but declaring, that in the event of William Sword
being unable to pay the £G009 then it should be competent to John
Sword to recover it from Latimer and the other owners. Latimer
paid the sum which was awarded against himself, and in February
1819 he sold his share of the vessel for i?210 to John Sword, who,
together with Peter Scott and John Bonar, granted a bill for the
amount, payable twelve months after date. At this time no mea-
sures had been taken to recover the i?600 for which Latimer
was contingently liable, and it was therefore agreed that the bill
should be deposited with the arbiter, until it should be ascer-
tained whether this contingent claim by John Sword against
Latimer would arise.
• In July 18SS, Mr. Drysdale, writer to' the signet,^wbo was a
Creditor of Latimer, arrested in the hands of Scott and Bonar, as
indebted under the bill to him, and he thereupon raised a process
of multiplepoinding in their name. After the usual interlocutor
had been pronounced, and the arbiter had lodged the bill in pro-
cess, and an order had been issued against Scott and Bonar to
consign the amount, they entered appearance, and objected to the
competency of the process, particularly to the order for con-
signation. The Lord Ordinary repelled the objection ; but the
Court altered, so far as related to the order for consignation, and
remitted to his Lordship to hear parties on the other points of
the case, (see ante, Vol. III. No. 861.) The case having ac-
cordingly returned to the Lord Ordinary, Scott and Bonar main-
tained, that as there was no double distress — Mr. Drysdale being
the only arresting creditor — and as they denied that the full
amount of the bill was due, it was incompetent to raise a process
of multiplepoinding, and thereby to constitute and obtain decree
against them.
To this it was answered, That as the bill was in the hands of
a third party (the arbiter,) and as it might possibly be claimed
090 CASES DECIDED IN THE
by John Sword, or by Latimer, there were competing interests,
so that a process <rf multiplepoiading was the proper form for
having the rights of parties to the bill ascertained.
The Lord Ordinary dismissed 4 the process of multiplepoind-
• ing which was raised in the name of Peter Scott and others in
i the character of -pursuers, but were only nominally so, as in-
« competent, reserving to William Drysdale, writer to the signet,
« who has made an appearance, and produced an interest in the
* process as a competing party, and carried on the proceedings
« accordingly, to.bring an action of furthcoming, or such other
< process as he may be advised to bring, for payment of the claim
« made by him, and found him liable in expenses.' Mr. Drysdale
having reclaimed, the Court (without hearing his counsel) un-
animously altered the interlocutor, sustained the process as com-
petent, and remitted to the Lord Ordinary to proceed accordingly.
. J. Sihgbb, W. S.— Gmaoff and Ouphaht, W. S — Agents.
No. 317- J. Phuj.— Skene— Marshall.
Magistrates of Auchtekmucsty. — Cheape.
Officers of State. — *SW.-G«i. Hope — Wood.
Competing.
Burgh Kogai—Ret Judicata*— K Royal Bui^h l»Tuig becow toofrwat, «d a de-
cree of adjudication of its whole property having been obtained in foro by a cre-
ditor—Held, in a ranking and sale brought by the creditor,— 1. — That the decree
of abjudication was not such a res judicata as to prevent the Magistrates from
opposing the sale of certain parts of the property which had been adjudged ;«—
2.— That the Crown had a right to appear and object to the sale of the jail and
town-house ;— and,— 3.— That it is incompetent for creditors to sell the jail and
town-house, with its steeple and its bell, or the petty customs of a Royal Burgh.
May 22. 1827. The Royal Burgh of Auchtermuchty having fallen into a state
2d D — si w °^ insolvency, Mrs. Arnott, a creditor, raised an action of adjudi-
Lord Newton, cation of the whole property of the burgh. In this process, in
M'K. which the Magistrates made appearance as defenders, deem of
adjudication was pronounced by the Lord Ordinary, and was
allowed to become final. Instead, however, of following up the
adjudication, by obtaining a charter and sasine, Mrs* Arnott
brought a ranking and sale, in which Mr. Phin was appointed
common agent In the usual memorial and abstract given in,
there were included among the subjects sought to be sold the
town-house and jail, with a large bell erected in the steeple of
the town-house, which could not have been removed without tak-
ing down some part of the steeple, and also the petty customs of
COURT OF SESSION. «1
the burgh, which were leviable by the Magistrates at the market*
under a royal charter, giving them power to regulate the amount
of the dues. To the sale of all these subjects objections were
made on the part of the Burgh ; and appearance was also made
for the Officers of State on behalf of the Crown, who objected to
the sale of the town-house and jail, which was, however, in a very
decayed condition.
• On these objections the Lord Ordinary appointed Cases to the
Inner-House by the three parties, the Magistrates, the Officers
of State, and the common agent
It was contended by the Officers of State and by the Burgh,
1. That the right of levying petty customs, and the consequent
regulation of their amount, granted to the corporation by their
charter, was in its nature inalienable, and could not properly be
exercised by an individual.
£. That burghs were bound by the act 1579, c. 273, to provide
jails, and that it was incompetent to allow creditors to deprive it
of that which was held by them for the public behoof, and was
necessary for the performance of the obligations imposed on them
by law ; and,
3. That the town-house and jail formed in fact one building,
pf which the bell was a part, and that, besides, they were res uni-
versitatis, and necessary for the Magistrates in the exercise of their
office.
On the other hand, it was pleaded for the common agent,
1. That rights of tolls, ferries, fairs, and the like, had frequently
been found to be attachable by creditors from private individuals,
and that the circumstance of such rights being granted to com-
munities could not affect their liability for the debts of the com-
munity ; and further, that in the case of Dysart the profits of the
hand-bell of the town had been found to be carried by an appris-
ing at the instance of a creditor of the burgh.
2. That the obligation on the burgh to maintain a jail was
personal, which if it could not be performed, the corresponding
privileges might be abandoned, but could not preclude creditors
from attaching property feudally vested in the Magistrates, and
purchased with their funds, and which they might have voluntarily
sold, and indeed is not unfrequently sold by burghs, more espe-
cially as the jail, in the present case, was almost entirely useless
from, the state of decay in which it was.
8. That the town-house, and particularly the bell, were in no
ways essential to the performance of any public duty on the part
of the Magistrates ; and,
4. dThat,at all events, the final decree of adjudication in favour
Qfe CASES DECIDED IN THE
*f the pursuer of the ratiKrig and side, which included the sub-
jects in question, formed a res judicata in the present case.
The Court found that the subjects objected to must be struck
out of the sale.
Loej> Gjltolek— 1 am inclined to sustain the objections. The Irargli
is bound by its station to have these things as long as it
royal burgh, to perform the public duties incumbent on it by
And I can see no more reason for allowing creditors to take
away, than there would be for permitting the creditors of an officer
in the army to attach his arms and accoutrements, which, though
*' purchased with his own money, are necessary for the performance
of his public duty.
" Lord Pitmilly— As to the plea of res judicata, I should be sony if
the decree of adjudication which I pronounced in the Outer-House,
without the discussion which has since taken place, should hare that
effect. But the Crown were not parties to that process, and besides,
the decree is in met little more than the title to proceed in this rank-
ing and sale. As to the merits, I doubt extremely the right of credi-
tors to attach these subjects, which the very circumstance of the
attempt to attach them proves cannot be renewed by the burgh. I
conceive they are res universitatis, and not the proper subjects of
commerce; and indeed they are enumerated by Erskfne as such.
The burgh could not sell these subjects voluntarily, except in the
case of their having provided new ones for the use of the bwgh,
when they might dispose of the old buildings no longer used as a
• jail, Ac, and if the burgh could .not sell, it necessarily follows that
creditors cannot attach them. The salary of public officers cannot
be attached to the extent of preventing them from performing the
duty for which the salary is given ; and in like manner the buildings,
&c of a burgh destined for public purposes, cannot be attached so
as to defeat the purposes for which they have been established.
Lord Alloway. — I have considerable doubts in this case. The ad-
judication has become final, and I think that that decides the matter
in a question with the burgh; but the Officers of State, who were
no parties to the process of adjudication, have now come forward,
which raises a question as' to their right and interest. I have no
doubt of their right to protect the public whenever they can show
an interest on the part of the public; and if they could maintain
here that it is necessary for the public interest (hat the burgh of Auch-
termuchty should have a jail, I would agree that they also had a
sufficient interest to make the objections in which they now ii
But considering the vicinity of this burgh to Cupar, when tin*
sufficient jail, and that the -funds of the burgh are confenaedryin
state as not to enable them to repair the present jail, so as to
it capable of use, I really cannot see that the Crown has a sufficient
COURT OF SESSION. 693
»
interest to interfere, though I do not doubt its right ; and then the
decree of adjudication, which I think was quite right, is final and con-
clusive in this question as against the Magistrates. As to the petty
customs, the only decision in our books is much stronger than this, viz.
the case of Dysart, where the bellman's privilege was adjudged. We
hare also instances of adjudication of similar rights from individuals,
and even of the right to elect the magistrates of a burgh in the case
of Sinclair of Ulbster. I do not see how we can distinguish between
individuals and corporations.
Lord Justice-Clerk. — This burgh of Auchtermuchty, though with-
out the privilege of voting for a member of Parliament, is a regular
royal burgh, and as such possesses a jail and town- house with a
bell which may be used not merely as a church bell, but for convo-
cating the burgesses. It is important, in reference to the plea of res
judicata, that there is no attempt on the part of the creditor adjudg-
ing to follow up her adjudication with charter and sasine ; but that
this is a ranking and sale, in which appearance is made for the Magi-
strates and the Officers of State. The Crowa has clearly a right to
insist that every royal burgh shall be maintained in statu quo under
the royal grant ; its interest is inherent in the nature of the thing, and
consequently does not allow of any inquiry as to the utility of keeping
up a jail in any particular burgh ; for, as long as it remains a burgh,
it has certain duties by law to perform, for which the jail is necessary.
The Crown, therefore, having a clear right and interest, and not
having been a party to the process of adjudication, I can have no
doubt of its title here. But further, as this is not a proceeding follow-
ing out the adjudication, which has only been used as a step to the
ranking and sale, I conceive that the Magistrates also are entitled
to appear and object. Then, on the merits, I am satisfied that the
jail and town-house being necessary for the performance of the public
duties of the Magistrates, is public property, and not subject to com*
merce ; and I am therefore clear that it cannot be sold. As to the
petty customs, there is still less difficulty. A right of levying customs
in a burgh is totally different from a right of ferry ; and as the grant
gives a power of modification, intrusted to the corporation or its
Magistrates, it is impossible to allow that to be exercised by an indivi-
dual. If the customs are not to be levied by the burgh, the lieges
must be freed from them entirely ; and if they are to remain exigible,
the burgh alone can exact them. I am therefore of opinion that all
the articles objected t6 must Le struck out of the sale. •
Votmnon Agent's Authorities.— -3. Stair, 2. J6; 1. Bell, 21 ; Lord Kennet, March 1.
1769, (10781) ; Magistrates of Dysart, Jan. 1686, (140.)
J. Phin, S. S. C— T. Leburn, S. S. C.—A. Holland, W. S.— Agents.
vol. v. 2y
694 CASES DECIDED IN THE
No. S18. W. Anderson and Other*, Puriuen.~*2>. cfF. Moncreif—
Ivory.
Chalmers and Guthrie, Defenders. — Scl-Gen. Hope-
Gordon.
May 22. 1827. This was a special case of accounting, in which the Lord Or-
2d Division, dnuury decerned according to one of two views taken by an ac-
Ld. Mackenzie, countant, and the Court adhered.
Ritchie and Miller, S. S. C— A. Stohije, W. S^-Agenta.
No. 319. D. M'Kkkzix, Pursuer.— WaOcer^Napier.
W. Robertson and Commissioners, Defenders. — Forsyik.
Abjudication— Pre$cription.- -The Court repelled a plea of prescription founded
on an infeftment on an adjudication, followed by upwards of 40 years possession,
as against a reduction of a decree of expiry of the legal obtained only nine years
baton* the action was brought.
May 22. 1827. A decree of abjudication of certain herixabie subjects in Ben-
2d division. frew> Qjf date the 10th of March 1768, against Matthew Walker,
Lord Pitmiiiy. &* lawfully charged to er^te* heir tQ his father Robert, was,
F. in 1772> assigned to the defender's father Job* fiobertson,
who. was infeft thereon, and entered into possession. of the sub-
jects. On bis death, the defender expede *jervice, on which he
was infeft; and thereafter, in 1809* he raised mi action of declara-
tor of expiry of the legal, in which he obtained decree, without,
however, having called the pursuer M'Kenzie, who had pre-
viously served heir to Walker, the reverser, and obtained an in-
feftment thereon. Of the decree of expiry so obtained, M'Ken-
zie, in 1817, brought an action of reduction, to which it was
pleaded in defence, That the infeftment on the adjudication in
1772, followed by upwards of 40 years possession, constituted a
valid prescriptive title. To this it wqs answered, That the pre-
sent action being for reduction of the decree of expiry of the
legal, which was obtained only in 1809, it could not be barred by
the previous infeftment, or possession thereon. The Lord Ordi-
nary havipg repelled the defence of prescription* Robertson re-
claimed ; and he having brought a reduction of M'Kensie's ser-
vice to the reverser, the Court superseded advising his reclaim-
ing petition till the issue of that reduction, (see ante, Vol. II.
No. 185) ; but M'Kenzie having now been assoilzied in that ac-
tion, their Lordships resumed Robertson's petition, arid unani-
mously adhered to the Lord Ordinary's interlocutor.
R. Urquhart,— J. Stuart, S. S. C. — Agents.
COURT OF SESSION. 895
A. Scott, W. S. Pursuer.— More, .fto. 320.
F A rquh arson's Trustees, Defenders.— Bazrd.
Discharge~*-Prt9cription.—A creditor under an extrajudicial composition-eontract,
baring got an obligation from the debtor to pay hi* faM debt, but having thereafter
discharged it on payment of the composition ; and hairing afterwardi get n bill
for the balance due on the full debt from the debtor, which was preacribedr^J^ieid '
not entitled to recover under the obligation.
The late Dr. Farquharson, having become insolvent, executed May 24. 1R27.
a trust-deed for behoof of his creditors, one of whom was William l8T T>m9IOK.
Scott, solicitor at law in Edinburgh, to the extent of -£424, for Lord Eldin.
which he ranked as an acceding creditor. Four dividends, amount- D.
ing to 17s. 3d. per pound, were paid to the creditors ; and on the
30th of October 1806 Scott granted a receipt to the trustee for
the fourth dividend, stating that it, together ' with three other di-
4 vidends formerly received, and premiums of insurance paid by
* him, I hereby acknowledge and accept of in full of the above
' debt, and engage to convey the vouchers to him in a habile
' manner, and at his expense, when required/ He accordingly
delivered up the documents and vouchers of the debt. In. the
month of April preceding, Dr. Farquharson had written a letter
to Scott, stating that it was his intention to pay him in full, and
bearing that * I hereby oblige myself to discharge my debt to you
c in full, both principal and interest.1 Thereafter, in 1816, an ac-
count was made up by Scott, showing that the balance due to
him was £3&tt and on the 1st of July of that year he drew a
bill for the amount, which was accepted by Dr. Farquharson', pay-
able one day after date. Dr. Farquharson died in June 1823,
having appointed the defenders his trustees, against whom the
pursuer (who was the heir of William Scott) brought an action
founding om the above obligatory letter and bill.
In defence, they rested upon the discharge which Scfrtt had '
granted to the trustee for the creditors, which was subsequent in
date to the obligatory letter, and pleaded that the bill was pre-
scribed.
The Lord Ordinary sustained the defences, and the Court ad- *
hered.
A. Scott, W. S. — J. Skinner, W. S. — Agents.
2y2
096
CASES DECIDED IN THE
1st Division.
Lord Eldin.
B.
No. 321. A. M'Nkjkl and Others, Pursuers.— -BairdL
Mrs. Ann Robertson, Defender. — Pypcr.
Proce**— Execution pending ^jppea/.— Held incompetent for a Lord Ordinary to
transfer against an executrix a warrant issued against a defunct Cor interim exe.
cation, pending' appeal*
May 84. 18*7. In an action at the instance of M'Neel and others against the
late John Vans Agnew, Esq. judgment having been pronounced
against him, with expenses, he presented a petition of appeal to
the House of Lords, on which he obtained and executed an order
of service. M'Neel and others then obtained a decree for the
expenses,, and got a warrant for interim execution ; but, before
they lodged answers to the petition of appeal, Mr. Agnew died.
They then brought an action of wakening and transference against
Mrs. Robertson, the executrix of Mr. Agnew ; and decree having
been pronounced, they then moved the Lord Ordinary to allow
the warrant for interim execution to go out and be extracted
against her. This was resisted by her as incompetent, because it
was the Inner-House, and not the Lord Ordinary, who was author-
ized by the statute to grant interim execution. The Lord Or-
dinary having granted the motion, and Mrs. Robertson having
reclaimed, the Court altered, and found the motion incompetent,
reserving to M*Neel and others to apply to them in proper form.
J* R. SxiNXEfi, W. S—J. B. Gracie, W. S— Agents.
No. 322.
H. D. Erskike. — Cuninghame.
Major G. F. Ekskinb.— D. <tfF. Moncreiff—Marthctl.
Competing.
Bond of Provinon—Maniage Contract.— C\rcaxaMUa*t*8 in which It
1 »-~That a younger ton hating obtained a. bond of pcoviaioa from his father,
preferable, in virtue of a power under a contract of marriage, to his elder brother,
who had ratified the bond ;— and,— 2. — That money advanced by the father for
the support of the younger son was not to be imputed in extinction of the bond.
May 84. 1827. jj v, a $0,^^ 0f marriage between the late Honourable Henry
1st Division. 'Erskine and Miss Eullerton of NewhalJ, he bound himself to se-
Lordb^ado,,r- tetute the fee of the whole of bis own property, of which he should
H. die possessed, to the heirs and bairns of the marriage, reserving
to himself a power of division ; while, on the other hand, Miss
FuUerton disponed the estate of New hall to herself, for the purpose
of selling it in the event that it should be foun4 free of an entail,
and to bold the price for behoof of the children of the marriage ;
but declaring, ' that the said Christian Fullerton and Henry
COUHT OF SESSION. 09T
* Erskine, and the survivor of them, in case the said estate is
c found to be free of the said entail, or sold, shall have power to ap-
' point and ascertain the shares which the children of this marriage
' shall have of the said estate, or price thereof, after the death of
4 the survivor of them (* and further, that the foresaid provisions
conceived ' in favours of the children of the marriage are to be
' in full satisfaction to the said children of all legitim, &c., or
* whatever else they might ask or claim through the decease of
4 the said Henry Erskine and Christian Fullerton, or either of
< them,' &c.
The trustees did not act ; and Mrs. Erskine having died, leav-
ing two sons and two daughters, her estate (which was found not
to have been validly entailed) was sold to the Earl of Kellie for
.£34,000. Henry David Erskine, the eldest son, then made up
titles to it as heir to his mother, and conveyed it to the purchaser.
The greater part of the price was paid to Mr. Erskine, who exe-
cuted various bonds of provision in favour of his younger children
— some of them of an absolute! nature — some in addition to those
already provided — others depending on the contingency of his
succeeding to the titles and estates of his brother, the Earl of
fiuchan — and others on that of the succession of his heir to them.
In particular, on the 7th of January 1805, Mr. Erskine, on the
narrative of the contract of marriage, granted a bond of provision
for £5000 to his son, the claimant, Major George Francis Erskine,
payable at the first term after his death, and declaring that it
should be in full of all claims under the contract of marriage, or
otherwise; but reserving a power to revoke. Thereafter, in 1808,
Mr. Erskine having advanced .££250 to purchase a troop in the
12th regiment of dragoons for his son George Francis, he executed,
on the 4th of October, a deed of restriction, by which he diminished
the provision of £5000 to that extent ; but declaring that, under
the said revocation add restriction, * I hereby approbate and oon-
' firm the said bond, &c. in favour (of the said George Francis
* Erskine/
Mr. Erskine having afterwards married, and purchased the
estate of Ammondell with part of the price of Newhall, he* exe-
cuted a deed of tailzie of the former of these estates in f&voar
of his eldest son and a series of heirs, and a relative trust-deed,
in which he stated that the conveyance made by him in the en-
tail, and a provision in the trust-deed in favour of his eldest son,
* should be in full contentation and satisfaction of his share of the
' said estate of Newhall and others, and price thereof/ and of his
other conventional or legal provisions. In this trust-deed, after
narrating the contract of marriage, and that the price of New-
698 CASES DECIDED IN THE
hall stood as a surrogatum for the same, and that, in virtue of the
power in the contract,. he had resolved to divide it among his
children, and that he had already made certain provisions in fa-
vour of his daughters and youngest son, he conveyed his estate
in trust for payment c of all debts and obligations due, owing, or
* prastable by me at my death, including the provisions to my
* wife and children ;' declaring that no part of the rents of the
entailed estate should belong to the heirs of entail until the pur*
poses of the trust were exhausted.
Thereafter, on the Sd of June 1814, and on the narrative that
his debts had considerably increased by making advances for his
eldest son, whereby a sale of part of his estate would be neces-
sary, and that he had resolved in certain events to annul the
deed, restricting the provision to his son George Francis, he
granted power to his trustees to sell part of his estate for liquid*
ation of his < debts and provisions in favour of my wife and
'children, as mentioned in* the said trust-deed.' At the same
time his eldest son Henry David executed a deed of ratification
narrating all those which had been previously granted by his
father, including the bond of provision to George Francis, and
bearing that ' I am fully satisfied of the powers of my said father
' to make such division as he may think proper of. the price of
< the said lands of Newhall and others, and also of the estate
* conquest and acquired by himself, amongst the children pro*
* created between him and the said Mrs. Christian Fulierton.1
On the death of Mr. Erskine, it was* foand that his funds
were inadequate to pay his debts. Various questions having oc-
curred among his children, and also between them and Ins credit-
ors, the trustees brought a multiplepoinding, in wbifch the Court,
inter alia, found * that Mr. Henry David Erskine, and the younger
* children of the late Mr. Erskine, for their absolute provisions,
' are onerous creditors of Mr. Erskine for that part of the price
< of Newhall which was paid to Mr* Erskine daring' his life,
' and are entitled to be ranked therefor upon the fund in medio
< peri passu with the Earl of Buchan and the Earl of KeDie,
< and the other onerous creditors of Mr. Erskhie,~~and with Mrs.
* Erskine, the widow of Mr. Enskine, for her provisions in their
( contract of marriage,-— *nd ranked and preferred them accord*
< ingly.' (See ante, VoL IV. No. 252.) Thereafter their Lord-
ships, < in hoe statu, repelled the claim made by the younger child*
< ren of Mr. Erskine for their additional and contingent pro-
' visions, and found that the heir, Mr. H. D. Erskine, is entitled,
< hoc statu, to claim the balance of the prioe of NewhaH; re-
' serving always to die younger children their claim for the con-
COURT OP SESSION. 69»
' tingent provisions when the conditions are purified, and to Mr.
' H. D. Erskine his objections thereto ;' and remitted to the Lord
Ordinary.
When the case returned to his Lordship, two questions arose
between the eldest son Henry David and his brother Major George
Francis— first, whether certain payments made to the latter by
bis father for his support while in the army, subsequent to the
date of the bond of provision, were to be imputed in extinction
of it ; and, second, whether he was entitled to be ranked as a
special legatee preferably to his brother on the. price of Newhall,
so as to recover full payment of his provision, or only along with
him as an ordinarv creditor.
In relation to the first of these questions, the Lord Ordinary
found, ' that the payments made from time to time to the claim*
' ant Major George Francis Erskine by his father cannot be
4 imputed towards the claim of the said Major Geoqge Francis
' Erskine under the bond of absolute provision in his favour;'
and appointed Cases to be lodged ' as to the question how far the
' younger children are entitled to claim their absolute provisions
' in full, as in a question with the eldest son, — or to suffer a pro-
' portional abatement, in consequence of the shortcoming of Mr.
' Erskine's funds.9
In support of that claim George Francis maintained,
1. That there was an obligation incumbent on his brother, as
the heir of his mother, to make effectual that part of the price of
Newhall which bad been allotted to him by the bond of provision
in his favour ; and,
£. That, by the deed of approbation of that bond, his brother
bad come under an obligation to give effect to the exercise of the
poorer of division by his father, and so wasb6und to see the bond
fully implemented, and, like a residuary legatee, was entitled to
draw only the remaining balance of the price.
On the other hand it was maintained by Henry David,
1. That the title which he had made up to his mother was merely
pro forma, and to enable the estate of Newhall to be transferred to
tbfe purchaser ; and besides, both his brother and the other child-
ren were- representatives of their mother to the extetit of the inter-
est claimed by each of them in the competition ; and,
%. That it was not the intention 6t Mr. Erskine, or of the deed
of ratification, that the younger children should have any prefer-
ence such as that now claimed.
The Lord Ordinary having reported the Cases, and Henry David
Erskine having reclaimed on the first point, the Court found,
' that the absolute provision for which Major George Francis
TOO
CASES DECIDED IN THE
Erskine has been ranked and preferred upon the fund in medio
amounts to the sum of c£&7£0, with interest thereof since the term
of Martinmas 1817 : That, in a question with the said Henry
David Erskine, the said Major George Francis Erskine is en-
titled, in the division of the fund in medio* to draw the said sum
and interest, preferably to the said Henry David Erskine, upon
the dividend on the late Henry Erskine's funds, corresponding
to the balance of the price of Newhall, for which balance his
children have been ranked as creditors in this process, witlrout
being liable to any deduction, either on account of any deficiency
of the late Mr. Erskine's funds, or of advances made by him to
his said son Major George Francis Erskine ; and decern, and
remit to the Lord Ordinary to proceed accordingly.'
H. Z>. Ertktne'i Authorities — Arbuthnot, Feb. 13. 1756, (8060); Lownes upon
Legacies, 418.
Hunteji, Cj.¥Jpbell, and Cathcart, W. S«— J. and C. Nairne, W. S.
— Agents*
<
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c
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4
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t
No. 323.
May 24. 18*27.
Ric&mak and Fabry, Vursmr^^Forvyth^Saful/briL
•«L M,'Laohlay* Defender.-— C ofF. M<mcr*iffi~*Jame8on.
Bill of Exchange.— A bill drawn in Scotland upon and accepted by a party in En-
gland, is an English debt, quoad a Scotch indorsee, equally aa in a question with
the acceptors.
Scott, Smith, Stein, and Company, bankers in Edinburgh,
were in use to draw bills on Kensingtons and' Company of Lon-
2d Division.
Ld. Cringletie* don, which bills they frequently obtained to be filled upas payee and
3. Endorser by persons (generally young lads acquainted with their
clerks) having no connexion with the transaction. Three of these
bills, dated in 1812, drawn by Smith, Stein, and Company upon,
and accepted by Kensingtons and Company of London, were thus
filled up as payable to the defender M'Lachlan. (who resided in
Scotland,) ' or order/ and were blank indorsed by him. The
drawers and acceptors having become bankrupt, Messrs. Hickman
and Parry, bill-brokers in London, into whose possession these bills
fyad come, raised an action in 1825 for payment against M'Lachian,
who pleaded in defence, inter alia, That the bill having been ac-
cepted, and being, consequently, payable in London, was an
English debt, and as six years had expired, it was subject to the
English Statute of Limitations.
The pursuers, on the other hand, contended, That although,
quoad die acceptors, who were bound to pay the bill in London,
it was an English debt ; yet, in a question with a Scotch indoner,
whose obligation was to retire the bill on the failure of the En-
COURT OF SESSION. WI
glish party to pay, the debt was Scotch ; and they also pleaded
that th4re were certain specialties which took this case out of the
Statute of Limitations*
The Lord Ordinary ordered Cases all to one of the bills ; and,
as to the other two, he assoilzied the defender on another defence
pleaded by him; and this judgment having been reclaimed against
by the pursoer, his Lordship made avizandum with the Cases
to the Inner-House, when the Court recalled the interlocutor ef
absolvitor, — found that the bills were English debts to be regu-
lated by the law of England, and remitted to his Lordship to
hear parties as to its effect.
Lord Justice-Clerk. — It is clear that this is an English debt; it-
was payable in London, and the rules of the law of England must
apply. We are not sufficiently aware of the effect of the English
Statute of Limitations to determine the cause at present ; but we mu9t
fix that it is an English debt, and that all the consequences of tlie
law of England will apply to It.
Lord Alloway. — There cannot be doubt but that a bill of exchange
is a debt of that country when it is payable ; and this was decided
in the case of the Royal Bank in regard to Ulb drawn by and ujkrafche
very same parties with those which are the subject of the present
action.
Lord Glenlee. — I entirely concur. The demand is no doubt made
in Scotland ; but that is only because there was a failure to pay in
Englaat, which the indorse* is held to guarantee shall be done*
Lord Pixmilly concurred.
Defender's AutA*ritig9.+-*Wat*any Jan, 91. 1792, (4689); Roger*, July 35. 1789,
(4507) ; Lord I.ovat, Dec. 2. 1742, (4512) j Grove, Nov. 1740, (4510) ; Royal
Bank, Jan. 20. 1813, (F. C.)
D. Fisher, 6. & C— J. Morisok, 8* S. C — Agents.
W. Austin &c. and their Curator ad Litem, Suspenders. — No. 324.
Skene— -Wilson.
H. Grant and W. Andebson, Chargers. — D. of F. Moncreiff
Shaw.
Heritable Creditor.— Circumstances in which heritable creditors were held not en-
titled to proceed with a sale of the property under their bond, while they refused
to accept payment on granting an assignation to a third party.
The late John Austin, father of the suspenders, was proprie- May 24. 1837.
tor of a small heritable property, over which he had granted an 2o Division,
heritable bond for £960. «e died in 1822* leaving a disposition Ld.Mackenae.
of all his property in favour of his wife and children ; and his F
702 CASES DECIDED' IN THE
widow thereafter granted a second heritable bond over the pro-
perty for i?100. Both these bonds having been acquired by
Grant and Anderson for behoof of Austin's creditors, they pro-
ceeded, by direction of the creditors, to take steps for selling the
property under the powers in the late Mr; Austin's bond. A bill
of suspension was then presented in name of the tutors appointed
by Austin to his children, which, after their removal as suspect,
(mentioned ante, Vol. V. No. 110,) was carried on in name of
the minors with a curator ad litem ; and an offer was made to
Grant and Anderson to pay them the contents of the bond for
<£260, op their executing an assignation in favour of a third party,
who was to advance the money. This offer having been refused
by Grant and Anderson, who contended that they were only
bound to grant a discharge, the Lord Ordinary found, * that, in
' the circumstances of this case, the chargers ought not to be al-
' lowed to sell the property in question for payment of the debt,
4 while they refuse to receive payment thereof- on granting the
'assignation asked by the suspenders."
Against this interlocutor the chargers reclaimed, and contended
that they were not bound to do more than discharge the bond to
their debtor, especially when their so doing would be m prejudice
of their other bond for J&100 granted by the widow of Mr. Austin.
To this it was answered, That the children of the deceased John
Austin were not properly debtors in the bond, having taken up
their father's succession cum beneficio inventarii ; and, at any rate,
that the children of a party deceased, if they could not advance
the money themselves, were entitled to demand an assignation in
favour of a friend willing to advance it, in order to preserve their
patrimony from sale ; and as to the prejudice to be sustained by
the chargers, that their bond from the widow was inept, as she
could nob burden the heritable property.
The Court unanimously adhered to the Lord Ordinary's inter-
locutor.
Lord Glenlee— -This is not a question whether a creditor, if he were
making no attempt to sell, could be compelled to grant an anign*-
tion on payment. This is \o prevent a sale ; and the fundamental
question is, whether matters are in such a state as that advantage
should be allowed to be taken of the fbifekure in the bond? Is
general, I. do not think creditors shoald be obliged to assign in pre-
judice of their other claims ; but the question here is, not whether
the creditors are bound to accept payment of the deity and give aa
assignation, but whether* if they refuse the offer, the *ale should be
allowed to proceed ? In jhe circumstances of the case, I think that
it ought not.
The other Judges concurred.
court of session: *m
Omrgers' AuthoriHe:—3. Emk. 5. U ; Home, July 10. 1666, (3347) ; Watt and
Rae, Dec. 31. 1697, (3356) ; Kennedy, Feb. 24. 1.708, (3370) ; Hay, Feb. 14.
1702, (3356) ; Bruce, Feb. 11. 1676, (3365) ; Milne, Nov. 6. 1678, (3367); Mann,
Dec. 19. 1705, (3370) ; Preston, Feb. 22. 1715, (8376.)
«
J, Patuon Jujo. W. S—C. Fish**,-— Ageats.
. 4
D. Sutherland, Pursuer. — Brown. No. 325.
H. Paul and Others, Defenders. — Fletcher.
tir*«t0,~rA pwty who bad illegally appropriated to hirasejf fund* belonging to his
employer, and spent them, refused the benefit of the cessio, although he had
suffered 18 months imprisonment.
Sutherland, having applied far the benefit of the oesiioj was Wy 25. 1827.
opposed by Paul, who stated that, after he had been a few months* . D v
in his sendee as a confidential clerk, he had appropriated up- h.
wards of £400 to his own purposes, and that be had spent the
greater part of it in purchasing articles of dreta, trinkets, && for
a girl of the name of Sally Wilson, who kept a bouse of bad -feme*
both in- Glasgow and Edinburgh. Sutherland did not deny the
fact, but rested his claim chiefly on haying endured eighteen
months imprisonment.
The Court refused the ceBsio in hoc statu.
Lord President. — In such a case we cannot listen to the plea of
favour from the length of imprisonment. The pursuer will he much
the better of eighteen months more.
J* Nairn,-*** J* A* Campbell, W, S^Agente.
W. Bbown, Pursuer.— Skene— Buchanan. JJ0# 326.
Wemyss and Walkee, W. S. Defenders.-^— 'Cuct&tim— ■
Rutherfhrd. *
ProceMM—-Biti-Ghamber Clerk.— A party having raised an action against his law
agent, on the ground of being responsible for an insufficient cautioner being re-
ceived in. the BiU-Chamber — Held, that as the Bill-Chamber Clerk had an inter-
est in the question, he must be called as a defender.
Bbown, being creditor of George Patterson and William Fer- May 25. 1827 .
gus for £ 40, contained in their accepted bill, gave them a charge ; ln DmgI01f
and tbey having presented a bill of suspension, he employed the ^ord Meadow-
defenders, Messrs. Wemyss and Walker, W. S. to act as his agents. bwik*
The bill of suspension having been sjsted, and%ordered to be an- S*
swered) the defenders entered appearance for Brown in the Bill-
Chamber. A bond of caution, subscribed by Robert AT Alpine,
704 CASES DECIDED IN THE
merchant in Leith, was then lodged with the clerk by the sus-
penders; and no answers having been given in, the bill was passed.
After a great deal of litigation, the letters were found orderly
proceeded ; and the suspenders having become bankrupt, Brown
proceeded to enforce the bond against the cautioner, but he was
ascertained to be also bankrupt. Brown, then, alleging that the
cautioner was notoriously insolvent at the time the bond was re-
ceived,— that it was the duty of the defenders to have seen that
the cautioner was solvent, — and that they had neglected to do so,
brought an action against them, concluding for payment of the
debt.
In defence, they pleaded that it was the duty of the Clerk of
the Bills to receive cautioners ; that the agent had nothing to do
with that matter ; and that if any Jiabiiity attached to any party,
it was to the Clerk of the Bills, and not to the defenders; and
therefore the Clerk ought at least to have been called as a party.
The' Lord Ordinary, ' in respect the Bill-Chamber Clerk is not
* called as a party, dismissed the action/ reserving to Brown to
bring a new action against the present defenders, and any other
party' he may think proper.
Brown having reclaimed, the Court recalled the interlocutor,
and, upon payment of the previous expenses, allowed the Clerk of
the Bills to be called as a party, and sisted process till he should
be called.
Lord President. — I always understood that the Bill-Chamber Clerk
was liable for the cautioner received by him. I believe that, in
practice, he requires the agent for the charger to say whether he has
any objection to him ; but I apprehend the agent is entitled to tell
the Clerk to act oa bis own responsibility. It is plain, however, that
the interest of the Clerk is involved in this process, and therefore
that he ought to be a party to it.
Lord Balora y. — This is a case of importance, involving the question,
first, what is the duty of an agent in a suspension, — and, second, what
is the duty and responsibility of the Clerk of the BQIs. The plea of
the pursuer is against all tbe established principles in regard to the
fluty of the Clerk. He says that that officer has nothing to do as to
inquiring into the solvency of the cautioners offered to him. But I
say tbat it is his duty to ascertain that feet ; and for doing so he is
paid, and well pai^d. Perhaps he may inquire of the charger or
bis agent, whether be has any objections to the proposed cau-
tioner, and this may be very prudent on his part ; but I agree with
your Lordship, that neither tbe charger nor his agent is bound to
interfere in the matter. Tbe Clerk of the Bills is a public officer, of
which this is part of his duty ; and tbe charger or his agent is en-
titled to teB him that it is his province, and not theirs, to be
COURT OF SESSION. 70S
as to the cautioner. If so, then the liability must attach to him
alone, and consequently the present defenders should be assoilzied
in toto.
Lord Craigie, — This is certainly a very important question, and one
involving the liability of not only the Clerk of the Bills, but of the .
Clerks of the Commissary Court, Inferior Courts, and the Court of
Session. By the Act of Sederunt 18th February 1686, the duty of
receiving cautioners is imposed on the Clerk of the Buls ; and I well
recollect that when Sir Hay Campbell remarked that there was great
hardship in making the Clerk responsible for the cautioner, the other
Judges answered, that he might ascertain whether the party was so*
tinned with him ; but it was not doubted that the duty lay wpon
the Clerk, and not upon the agent. I think, however, that instead
of dismissing the process, the Clerk maybe called aa a party, so that
he may be heard for his interest.
Lord Gillies*— -If it be quite clear that the liability attaches to the
Clerk alone, then the defenders should be assoilzied* The Act of
Sederunt IStb February 1686 is quite distinct as to* the liabjljty of
the Clerk, and there is nothing said as to his waiting till the cau-
tioner be objected to. No doubt, that act is repealed by the subse-
quent one of 14th June 1799 ; but it declares, ' that in time coming
1 the Clerks of the Bills shall be responsible for the due and faithful
* execution of their duty in receiving or rejecting cautioners, ac-
* cording to the rules of common law and justice, applicable to the
* circumstances of the cases that may hereafter occur ;' so that the
Clerk has manifestly an interest in this question, and consequently
ought to be called as a party.
J. Gbeig, W. S— D. Fisher, S. 3. C-— Agents.
Crawford's Trustees, Pursuers.— Ftdkrfort— Graham Bell. No. 327*
W. Haig and Others, Defenders. — D. of F. MoncreifF— Ivory
— Gibson-Cratg.
Sexennial Prescription— Bankrupt Statute-*Seque*tHit$0n.—L—Hd4L, that the pro-
duction of a bill in the hands of the preses of a meeting of creditors for the elec-
tion of a trustee on the sequestrated estate of one of several co-acceptors, is not
such a production under § 52 of the Bankrupt Statute, as is equivalent to an ac-
tion, and sufficient to save the bill from prescription as against the other accept-
ors ;— and, Observed unanimously,— -2.— That the effect of a production in
terms of the statute in a subsisting sequestration would not be done away by a
subsequent recall, as improperly awarded.
The late Robert Meldrum, agent for the Bank of Scotland at May 26. 1827.
St. Andrews, as principal, and Messrs. Haig, Clark, Fairnie, ^ division
and Captain Meldrum, as cautioners, accepted a bill for «£390, Ld. Cringletie.
drawn by one Bell, and dated 1st September 1815. In March F*
1319" a sequestration was awarded of the estate of Meldrum, the
709 CASES DECIDED IN THE
principal acceptor, and a meetihg of his creditors was held on the
5th April for choosing an interim factor. Two parties having
claimed the office as duly elected, an application was presented by
the creditors, praying the Lord Ordinary to devolve the interim
management on the sheriff-clerk of the county ; and a warrant to
this effect was granted, and extracted on the 27th of April. The
election of a trustee was appointed to take place on the 3d of May
thereafter, and accordingly a meeting of creditors was held, at which
the sheriff-clerk was not present; but Mr. Monypeany appeared
* on his behalf, and produced a book in which the warrant of die
Court had been engrossed by him, and also a letter from him,
stating that the time betwixt his appointment and the day of
meeting had been so short, ' that it afforded no opportunity to
' him to take any measures in regard to the bankrupt estate, all
* the papers and documents with respect to which being io Edin-
* burgh.1 Among the claims tendered at this meeting was one by
William Crawford, to whom the bill above mentioned had been
indorsed, and who produced the bill, with an affidavit. The bill
was accordingly marked by the preses, (who happened to be Mr.
Hajg, one of the acceptors,) and returned to Crawford, who, in
virtue of it, voted for the election of a trustee. There were two
candidates for this office ; but the apparent majority of votes being
in favour of the late Mr. John Crawford, he immediately pre-
sented a petition for confirmation, and was confirmed accordingly.
A counter petition was shortly afterwards presented by the other
candidate, on which the Court recalled the interlocutor confirming
Crawford, and remitted both petitions to the sheriff of the county,
to be reported on in common form. No report, however, was
ever returned in this competition, — there having been, in the mean
time, an application presented "by certain of Meldrum's creditors
to have the sequestration recalled, on the ground that he did not
fall within the description of persons to whom sequestration was
permitted by the Bankrupt Statute ; on which application, after
considerable discussion, the Court, in 1821, recalled the sequestra-
tion. (See ante, Vol. I. No. 163.) An appeal was entered against
the judgment of the Court ; but, at a meeting of creditors, it was
directed to be withdrawn. A private trust was then agreed to,
under which the above-mentioned bill was lodged, and a divi-
dend was paid on it out of MeldrunTs estate ; but, duriqg all the
preceding period, no further steps had been taken to preserve it
from prescription.
In 1822, however, an action for payment, directed against the
trustees under Meldrum's trust-deed, and the several co-acceptors,
COURT OF SESSION. 70T
was raised by William Crawford,— ■afterwards transferred by him,
along with the bill, to the late John Crawford, and, since his
death, carried on by his trustees. The defence pleaded by the
cautioners was prescription ; in answer to which it was maintained
by the pursuers,
1. That the production of the bill at the meeting of Meldrum's
creditors for election of a trustee was a production falling within
the terms of the Bankrupt Statute, which declares, * that the
' making production of the ground of debt or certified account,
4 with the oath of verity aforesaid, in the hands of the interim
4 factor, sheriff-clerk, or trustee, or in the Court of Session, shall
' have the same effect as to interrupting prescription of any kind
' from the period of such production, as if a proper action had
' been raised on the said grounds of debt against the bankrupt,
' and against the trustee ;' and consequently, as an action against
Meldrum would undoubtedly have kept up the bill against all
the other obligants, this production must necessarily have the
same effect ; and that no other production could well have bee?
made, as there never was an interim factor or trustee with whom
to lodge the bill, and as the sheriff-clerk had not acted.
2. That although the sequestration was subsequently recalled,
yet it is declared by the statute, in reference to the case pf an ap-
plication for recall, c that in the mean time, until this matter be
' finally determined, the proceedings under the sequestration shall
' go on as if no application had been made ;' and that therefore
there was a non valeqtia on the part of the holder of the bill to
take any other step for its preservation than that which be did,
as he could not have proceeded with diligence or by action pend-
ing the sequestration.
3. That, subsequently to the lapse of the six years, Clark, one
of the cautioners, had written letters equivalent to an acknow-
ledgment of the debt, which, it was contended, revived the bill as
to the whole co-obligants ; and,
4. That the marking on the bill by Haig, another of the cau*
doners, as preses of the meeting at which it was produced, was
an acknowledgment of the debt on his part.
To this it was answered,
1. That the production of a document at the meeting of cre-
ditors for election of a trustee, at which the statute did not re-
quire the presence of either the interim factor or the sheriff-clerk,
was not a production, in terms of the statute, ' in the hand* of the
' interim factor, sheriff-clerk, or trustee* or in the Court of Ses-
' sion/ and that the sheriff-clerk bad in truth acted, or at all
[
708 CASES DECIDED IN THE
events had never refused to act ; but besides, that it was always
competent to have produced the bill in the Court of Session, by
lodging it with the clerk of process.
£. That Meldrura having been ultimately found not to fall
within the description of persons whose estates the Court are war-
ranted to sequestrate, the sequestration, and whole proceedings
had thereon, must be held to be null and void, as ultra vires of
the Court ; but that, were it otherwise, the sequestration of Mel-
drum could create no non valentia in respect to the other obli-
gants, against whom diligence or action might have proceeded; or
even as to Meldrumjs estate, since the statute had substituted for
diligence or action four modes of preserving the bill, viz. lodging
it in the hands of the interim factor, sheriff-clerk, or trustee, or
producing it in the Court of Session.
S. That the letters founded on were not equivalent to an ac-
knowledgment, so as to affect even Mr. Clark himself; but, at all
events, as to the other obligants, that it was now settled that an
acknowledgment by one party to a bill, after the six years, could
not affect the other obligants ; and, .
4. That Mr. Haig's marking the bill, as proses of a meeting of
creditors, could infer no personal acknowledgment of his liability
for the debt ; and, at all events, that it was prior to the lapse of
the six years.
The Lord Ordinary having reported the cause, in which ap-
pearance had been made for three of the cautioners, Haig, Clark,
and Fairnie, (decree in absence having passed against the other,
Captain Meldrum,) the Court, on advising the informations or-
dered by his Lordship, appointed a condescendence bv the pur-
suers as to the manner of the alleged production of the tell in the
sequestration. Before the case came to be finally decided, how-
ever, Clark became bankrupt, and his trustee having refused to
sist himself, the Court decerned against him ; but, in regard to
the other two cautioners, Messrs. Haig and Fairnie, they sus-
tained (he plea of prescription, and assoilzied.
When the cause was first before the Court, their Lordships
gave their opinions as to the effect of the recall of the sequestra-
tion as follows : —
Lord Glenlie. — I cannot say that the point as to the recall of the
sequestration is at all clear. If the ground on which the production
in the sequestration was to be held as stopping prescription, depend-
ed entirely on the circumstance of the creditor taking a step to l*P
up his right, then the sequestration in this case would be merely in
the situation of an irregular action. But there is another principle* *i*»
that the sequestration introduces a non valentia agere cum elects*
COURT OP SESSION. 709
so that to bring. an action against the party under sequestration'
would be absurd. The sequestration, while subsisting,, had tjie full
effect of a regular one, and introduced as complete a non valentia
as if it had never been recalled ; and I therefore cannot hold the
recall as bringing things to the sane state as if there nerer had been
a sequestration.
Lord Justice-Clerk^— I new this matter in the same light. When-
ever a sequestration .is awarded, all proceedings must immediately
go on as if it were correct. The question of recall is a matter of dis-
cussion, and here two years were consumed in it ; but the proceed-
ings may go on all the time. Suppose that every thing had been
done, in regard to the production, which the act requires, I miist con-
fess that I could not come to the conclusion, that, in consequence of
a subsequent' recall, every thing which had been done must go for
nothing, as utterly null and void, and that the interests of bona* fide
creditors are to be thereby defeated.
Lord Pitmilly concurred.
Lord Alloway^As to the question, whether the recall «o«W de-
prive any parties who had exercised rights under the sy^ysitiiiiaa
from the benefit of it, I think that neither third parties, aer those
under die sequestration, can be so deprived of the benefit of it. The
production of a bill in any ceuspetition, as a ranking and sale, is held
in law to be an interruption; so that the existence of the sequestra-
tion, and the production of the bill under it, would have interrupted
proscription at common law. But, besides, sequestration operates as
a diligence for behoof of all the creditors, and prohibits all other dili-
gence ; so that the creditors are precluded from the exercise of those
rights whereby they might have interrupted prescription ; and I
therefore conceive that it is impossible to hold that the recall of the
sequestration could deprive the party here of any defence against
prescription, which be may have under the act of Parliament by the
production of the bill.
* * •
After the condescendence was ledfeeVthftk Lordships, on finally ad-
vising the cause, delivered the following opinions on .the question
whether the production was in term* of the. statute:—
Lord Justice-Clerk. — I do not think the condescendence places the
matter of fact in a different view. There was no lodging with the
interim factor, the sheriff-clerk, the trustee, or in the Court of Ses-
sion ; and I cannot hold the producing the bill at the meeting to be
. within the act. We have no power to introduce equipollents, but
must hold to the strict provisions of the statute, which has not been
. complied with here ; and there has been, therefore, no such produc-
tion as to prevent the running of prescription.
Lord Pitmilly. — I entirely concur with your Lordship. The act
1772 lays down the general rule of prescription on the lapse of six
vol. v. 9.Z
710 CASES DECIDED IN THE
yeans, and the Bankrupt Statute estabfishe* an exception, if a parti-
cular mode be complied with ; but we nroat confine ounefos to that
modet I cannot bere-see the difficulty* of having lodged the KB with
the sheriff-clerk. He did not refuse to act It may be tree he did
not do anything*; but was there any thing to prevent lodging the
bill with him ? Or it might have been lodged in the hands of the
clerk of the process, which would have been a production in the
Court of Session. Neither of these was dene; but it was pro-
duced in the hands of the proses of the meeting, which is not within
the statute.
Lord Alloway— I cannot consider the question in the Btntvpoiat
of view taken by the Judges who have preceded me. It k trae tbt
by the act of 1772 sexennial prescription was introduced, bat under
the exception of an action having been raised or diligence done. Now,
if in a- multiplepoinding the bill be produced, this wonld bar prescrip-
tion, although it would not fall within the strict terms of the act
1772. Even in the long prescription, it. is held that a mo valentt
agere is a sufficient ground for eliding prescription. Now* bow can
we lay aside here what affects every other prescription? Hue wa
anon vaJentia.agere here, as the creditor, was prohibited fie* niaiog
diligence by the sequestration, which is declared to he a genual di-
ligence for behoof of all the creditors* and therefore atgjpanad suffi-
cient to bar prescription* But even if the question is to be oeofiaed
to the words of the Bankrupt Acs, there waft, I conceive, asnftaeat
production here* The whole proceeding* in a sequestration are un-
der the superintendanoe of this Court, whack appoints ihenaeetiag
to. choose the trustee* Now, when such a meeting takes plan under
the authority of this Court, in not a production in it ajnedontioa m
the Court of Session? The extract of the sherifrcleikensweridid
not take place till the 27th of April, and the election ■eating *"
on the 3d of May thereafter. At this meeting the party appear
and, as the sheriff-clerk could not attend, the prases is chosen, and
the bill is produced and marked by him, and a vote on it w reckon-
**L It comes before the Court, and their sanction is giren to H ty
ceafirroatioBv It is afterwards remitted, no doubt, on a competes,
and the application for recall of sequestration is made on tbel&»rf
May, and not decided for two years in June 1821, when the eeqae>
( tration was recalled. During all this procedure, the party waa p0"
hibited from using diligence— there was ajion.valentia agera. It**?
be said he was entitled to. raise an action.; but what would be the
use of this against a person under sequestration? And, upon ««
whole, I cannot doubt but that this was a sufficient production to
bar prescription.
Lord Glenlee. — At first the matter appeared to me in the Ifcto *
which Lord AllOway has viewed it. But what brought me to be «
tbe same opinion with your Lordship and Lord Pitmilly was this:-
The question is net as to whether the bill is kept up againat Me>*
COURT OF SESSION. 711
drum, the bankrupt, bat whether it has been kept op again* the
ether obligants. Am against Meldrum, I should think that enough
has been done to keep it up, not in respect of the clause in the act,
but at common law, because there was a non valentia agere against
him cum effectu* But it is very different where the question comes
to be whether the bill has been preserved against the others. A
claim against one individual, other than an action, I understand not
to keep up the debt against any of the obligants except that in-
dividual. For, if it were enough to keep one person bound, we have
here Meldrum 's trustee confessedly so, and actually paying a divi-
dend on it. But when we come to talk of any obfigant other than
him against whom steps have been taken (not being an action,) we
cannot hold it as kept up. On the general point, therefore, I think
the bill has not been kept up against the cautioner, as it is m van to
say there was a non valentia agere as to them, for the statute points out
many things which might have been done to save prescription ; and
my view as to the bill being preserved against the bankrupt does not
depend on the clause of the statute, but on the rule of common law,
that a non valentia agere (produced in his case, and quoad him by
the sequestration) prevents the running of prescription ; but to make
the production effectual against other parties, it must be brought
within the terms of the statute, which I do not think it is.
J. Robxrtson, W. S.—Tennant and Lyon, W. S. — Gibson-C raids
and Wahdlaw, W. S. — Agents.
A. M. Gtuthri* and Others, Suspenders.*— Gordon. No* 328.
G. Miller, Charger.— ifamrton.
Jvriidiction— Police. — The Court will not interfere with the exercise of the discre-
tionary powers vested in Commissioners of Police under a local police set, ex-
cept in case of excess of powers or deviation from the statute.
By a local act (5. Geo. IV. c. 129.) for paving, lightings watch- May 35. 1887.
ing, and cleaning the burgh of Dundee, power is given to the ^ p^jjiow.
Commissioners of Police thereby appointed, either ex officio, or Ld. Mackenzie,
to be elected by the several wards, to make orders and regulations MK*
for these purposes, and generally to execute the whole matters
specified in the act ; and they are specially empowered to levy
assessments on the several dwelling-houses, &c. not exceeding a
specified rate, — it being declared that all parties who may eon*
ceive themselves aggrieved by the amount of assessment proposed
to be laid on them, may appeal to a meeting of Commissioners to
be held for considering such appeals, and the Commissioners, it
is provided, ' shall finally fix the amount.9 This act includes
within its operation, besides the burgh proper, the suburbs, and
2z2
718 CASES DECIDED IN THE
eettfeiri grounds adjacent, specially mentioned ; but it is . provided
by section 8« * That, in order that those- wards, if there be any
4 snch within the -said bounds, which the General Commissioners
* under this act may not find it expedient to pave, or to watch, or
4 to light, may not be assessed under this act for those purposes,
c it shall be lawful for the said General Commissioners, and they
' are hereby authorized and empowered to exempt for a time, or
' during the continuance of this act, any place or places, grounds
' and houses, within the limits before described, from all or any
' of the regulations herein after established in regard to paving, or
c lighting, or watching ; declaring always, that any such grounds,
* houses, place, or places, if so exempted from all of the said re-
4 gulations, shall, during the continuance of such exemption, be
* free from payment of the corresponding assessment by this act
* authorized to be levied.9
Under authority of this act, the Commissioners of Police pro-
ceeded to light and watch the town ; but although they levied
the highest rate allowed by the statute, their funds were insuffi-
cient to light or watch adequately the outskirts, and, in particu-
lar, the houses or villas of Guthrie and the other suspenders.
From these the nearest lamps and watchmen's beats were several
.hundred yards distant ; in one case the nearest lamp on the one
hand being 564 yards distant, and on the other hand 950 yards;
and the nearest watchman's beat 514 yards on the one side, and
1655 on the other.
In these circumstances, the proprietors brought a suspension of
a charge for payment of the assessment at the instance of Miller,
the clerk of the Commissioners, on the ground, that as they did
not receive the benefit contemplated by the act, they could not he
subjected in the assessment ; and, in particular, that they were
entitled to exemption under the third section of the statute.
To this it was answered,
1. That in regard to matters of police under a special statute,
in which the ordinary Courts of Law had no original cognizant)
if the Commissioners, or other persons to whom the execution of
the act is intrusted, be empowered * finally' to fix the amount of
assessment, the Court of Session cannot interfere, unless in the
case of excess of power ; and that, in the present instance, there
had been no excess of power, the Commissioners having merely
exercised the discretion confided to them by the statute in the
distribution of lamps and watchmen, and hating indeed exer-
cised it judiciously, and as beneficially for all parties as their
funds permitted ; and,
£. That the third section only allowed an exemption of whole
rCOUHT OP SESSION. 719
ward*, not of individual houses or districts ; and, besides, that the
power of exemption was discretionary in the Commissioners.
The Lord Ordinary having reported the cause on Cases,, the
Court found ' that by the third section of the act of Parliament
' founded on, the General Commissioners of Police are not pre-
' eluded from exempting from assessment any house or houses,
1 place or places, to which the benefit of the act may not be ex-
4 tended, and reserved to the suspenders to apply again to the
* General Commissioners for such exemption ;' and under the
above finding they repelled the reasons of suspension, and found
the letters orderly proceeded.
Lord Justice-Clerk. — It did not appear to me that there was any
clause in this act to exclude the review of this Court in a case of
flagrant excess of power, or deviation from the statute. But the ques-
tion here is, whether, on the facta stated, there is such a flagrant
deviation as to justify the interference of this Court ? It would he
absurd for this Court to sit here and decide all the questions which
fall under the ordinary duty of Commissioners of Police. The Com-
. missioneis, however, are entirely wrong in their construction of § 3,
as to exemption. It is quite a mistake to suppose that they must
leave out whole wards if they exempt at all. It relates to particu-
lar portions of the wards, and in a fair exercise of their powers they
are bound to give redress to portions which they do not light and
watch. We must look to this, however, that the funds are miserably
deficient, and it is impossible to expect them to light and watch the
outskirts in the same manner as die centre of .the town. If the
Court saw a case of wilful denial of rights under the statute, or a
clear excess of power, we would interfere ; but we cannot be called
on to fix whether there is to be a lamp at this point, and a watch-
man at that.
Lord Glenler. — I see no allegations that this ward is not lighted
as far as the funds will admit, or that the lamps might be placed so
as to light the whole ward better, or that the present number of
lamps might be kept up with the funds, if these gentlemen were ex-
empted.
Lord Pitmilly. — On some points there can be no difference. As
to the jurisdiction of this Court, it is clearly as your Lordship has
stated. It is also clear that the construction put by your Lordship
on § 3 is correct, and I hare no doubt, therefore, of the power of ex-
emption. But on the facts I have considerable difficulty. Mr.
Guthrie is one third of a mile from a lamp, and yet is he to be as-
sessed ? It appears to me very hard, and I rather thought that it
was within the power of the Court to relieve him.
Lord Alloway. — The doctrine laid down from the Chair as to juris-
diction cannot be disputed. The great distinction is, that when thia
714 CASES DECIDED IN THE
Court has bo previous jurisdiction, it requires ctyw ten *«•
clude. But wlien there is im> previous and radicdjiffMictiei^ and ^
jurisdiction is created by the statute, the question comes to be de-
termined on this ground, (lave the parties intrusted with powers
exceeded them ? . For while they keep within the bounds of the sta-
tute, which commits to them a discretionary power, unless excess of
that power is pointed out, this Court cannot well interfere* There most
be a local power for exercising this discretion, and it could not be
more fairly vested than it is here, and in so far as they merely ex-
ercise that discretion, I would not interfere* Hie question of cm
commodum cannot apply. Take the case of roads, — a man who travels
ten miles pays no more toll than h£ who goes- only 100 yards, sod
I apply this to the objections of Lord Pitmilly. There can be no
doubt of the Commissioners' power to exempt under § 8 ; and on
the whole I agree with the Lord Justice-Clerk.
A. Stokie, W. 8. — J. Brown, W. S. — Agents.
No. 329* D. Kwox, Suspeader^-Forsyth.
D. Brand and W. Berry, Chargers.— 2>. <fF. Moneniff.
Poneuorg Judgment, — Circumstances under which a personal title, with seven
years possession, was held sufficient to warrant a possessory judgment.
May 36. 1827. This was a question as to a possessory judgment of a right of
1st Divisioh. ferry, in support of which the chargers founded upon a Crown
Bill-Chamber, charter dated in February 1819, a sasine in March thereafter,
Lord Craigie. wjth possession thereon for the requisite period. On the other
hand, Knox alleged, that although seven years had expired from
the date of the charter, yet several days were wanting to com-
plete that period from the date of the sasine.
The Lord Ordinary refused the bill ; and the Court adhered.
Lord BALGRAY.~The charter itself is a stffficietrt tide of possession ;
and we all know, that in order to have a possessory right to a servi-
tude, any written title is sufficient.
The other Judges concurred.
J. Yule, W. S. — A. Forsyth, S. & C— Agents.
No. 330. T. Scott, Suspender.— Forayih.
A. Alexander, Charger. — Donald.
May 87. 1897. This was a suspension of a decree proceeding upon an oath,
1st Drniiow. which the Lord Ordinary refused ; and the Court adhered.
Bill-Chamber. J ^*
COURT OF SESSION. 71*
I
A. Caldwell and Others, Susipenders.— -SW.-C^n. Hope. No. 33^
P. Campbell, Charger.— Shaw.
Decree in Faro— Agent and Client— A. S. Feb. 6. 1806.— A party having been
charged on a decree of the Court of Session bearing to be in foro, and to have
proceeded on a petition by an agent' agahwt Wb client under the above A. 8., and
that it had been duly served— Held competent to past a bill of suspension on
caution for the expenses ot the decree merely, on the allegation that it had been
served only on the opposite agent, and not on the party.
Campbell, as agent in a process of sequestration, in which May 26. 1827.
Caldwell* and others claimed as creditors, having applied to have ]«. Division
his accounts taxed in terms of the Aet of Sederunt 1806, a remit Bill-Chamber,
was made to the Auditor, and a decree was pronounced against Lord Craigie.
Caldwell and others, and thereafter an extract was issued, which H'
was marked as a decree in foro, and stated expressly that the
petition had been duly served.
Against a charge on that decree Caldwell and others presented
a bill of suspension, without caution, alleging that the petition
had not been served upon them, and that it had merely been in- .
timated to an agent who happened at that time to be employed
by them.
To this it was answered,
1 • That as the decree bore that the petition had been duly
served, and was in foro, it was not competent to suspend it upon
any alleged irregularity not appearing ex facie of it ; and,
2. That even if the allegation were correct, it was not relevant
to set the decree aside, because the Act of Sederunt merely re-
quired that intimation should be made to the * opposite party*'
which in practice had been construed to be the opposite agent;
and that in this case the suspenders had been parties to the pro-
cess of sequestration which was then in dependence.
The Lord Ordinary refused the bill ; but the Court passed it,
on caution for the expenses of obtaining the decree.
N. W. Robertson, S. S. C— Campbell and Burnside, W. S. —
Agents.
D. Jobson, Suspender. — Moir. No. 332.
A. Heid, Charger. — Pyper.
Parent and Child.—- Bill of suspension passed simpliciter to try the question,
whether, in the circumstances, the presumption of pater est qucm nuptin de-
monstrant was redargued.
This was a charge of a decree of the Inferior Court, finding May 26. 1827.
that the suspender was the father of the child of a married woman, lgT Dl
under circomstances which, it was alleged, excluded the presumpi Bill-Chamber,
tion that pater est quern quptiae demonstrant. Ld. Corehouse.
716 CASES DECIDED IN THE
The Lord Ordinary refused the bill; but the Court, without
hearing counsel on either side, considering the question of very
great importance, altered, and passed the bill simpliciter.
G. Scott, & S. C— J. D. Lawrie, S. S. C— Agents.
No. 333. H. Hamilton, Advocator and Suspender. — D. efF. Moncrtif
— Brown.
Mrs. J. Wyllie and Son, Respondents and Chargers.— Mai**'
Marriage*- +1. — Circumstances sufficient to constitute an irregular marriage.—
2.— Weld irrelevant as a defence against a declarator of marriage, adherer,
and aliment, to allege that the woman had, previously to her marriage with the
defender, had carnal connexion with his full brother, and had concealed that cir-
cumstance from the defender.
May 86. 1827. Ths advocator, Hamilton, who was the second son of a respect-
Sd Divisiok. able .landed, proprietor, entered into an illicit connexion with the
Bill-Chamber, respondent, then a servant in his mothers family, inconsequence
Consiatorial. 0f wbich she became pregnant ; and in January 1821 she left her
service, and went to reside with her uncle, a farmer, to whoa
Hamilton had applied to receive her into his house, which was
situated within a few miles of Glasgow. In the course of the
February following, the. respondent, accompanied by her uncle
and his daughter, went to Glasgow, where they met Hamilton
at an inn, from whence they proceeded to the office of the Procu-
ratop-Fiscal of the burgh to obtain a form to be gone through)
practised in that and some other of the burghs of Scotland, of ce-
.lebrating irregular marriages, by presenting a petition to the
Magistrates, stating that the parties had been irregularly mar-
ried, and praying for fine or imprisonment, on which the parties
emit a declaration confessing the charge, and are sentenced to pay
a certain fine ; and they then obtain an extract, of the sentence,
which serves as a proof of the marriage. In the Burgh Court of
Glasgow printed copies of such petitions, declarations, and ex-
tracts, are kept blank in the names of the parties ; and on the
present occasion one of these petitions was presented, setting forth
> that the advocator and respondent ' had obtained themselves mar-
' ried without proclamation of banns, and not agreeably to the
* regulations of the church,9 — and praying that they might be
fined or imprisoned, as directed by law. The parties then, m
presence of one of the Magistrates, did, as the extract of the sen-
tence bore, ' severally acknowledge themselves to be man and
4 wife ; and that upon the day of , that is, lately, they
' obtained themselves married without proclamation of banns*
COURT OF SESSION. 717
&c. They likewise subscribed a declaration to this effect ; and
a printed sentence was accordingly signed by the Judge, fining
the advocator ' in one hundred merks Scots for his irregular mar-
* riage complained of, reserving to consider how far he ought to
* be imprisoned.5 After this judicial procedure the parties went
back to their inn, where they had a dinner, at which their healths
were drank as Mr. and Mrs. Hamilton ;— they then returned to
the house of the respondent's uncle, and went to bed together.
Shortly afterwards they set out on a marriage-jaunt, in the course
of which they conducted themselves and were treated as man and
wife. The respondent was subsequently delivered of a son ; but
Hamilton having deserted her, she, for some time, accepted ali-
ment for the child as a natural child, and on one occasion signed
a receipt for a certain sum, * being in part of a sum agreed to be
4 received by me for the aliment of a natural child, in terms of
* my agreement ;' but afterwards, in the year 1804, she raised
before the Commissary Court, in her own name and that of he*
child, an action of declarator of marriage, and legitimacy, adher-
ence, and aliment, in which the facts above stated were proved
by the extract of the sentence and original proceedings in the
Burgh Court of Glasgow, and by the evidence of the Magi-
strate, Procurator-Fiscal, and other persons present, and like-
wise of different individuals who had seen the parties subse-
quently and during their jaunt together. In defence, Hamilton
craved to prove a circumstance which he stated to have come to
his knowledge after the alleged marriage— viz. that the tfespond-
ent had previously had carnal connexion with his full brother;
The Commissaries refused to allow proof of this averment, and
decerned in terms of the respondent's libel ; and thereafter tUey
modified the aliment to be paid her to £60 yearly, and JPSO
yearly for the child, — having previously found Hamilton liable in
£150 of interim aliment. Of the final judgment in the cause
Hamilton presented a bill of advocation ; and having been incar-
cerated on the decree for interim aliment, he likewise presented a
bill of suspension and liberation, and in support of these bills he
argued,
1. That the evidence of the persons present at the proceedings
before the Magistrates of Glasgow, as to what there took place,
was not competent proof of judicial acts ;— that these disgraceful
proceedings, by which the Burgh Court of Glasgow lends itself
to encourage an evasion of law, ought not to be looked to as evi-
dence in this Court, and are not sufficient to constitute a mar-
riage, or to prove that interchange of consent de present! neces-
sary to do so,*— proceeding, as they do, en the assumption of
718 CASES DECIDED IN THE
what is admitted by both parties to be a falsehood, viz. that a
marriage had been previously celebrated, though irregularly;
and further, that the other circumstances brought out in evi-
denoe were not sufficient to constitute marriage.
£. That he ought to have been allowed a proof of his averment
regarding his brother's previous connexion with the" respondent,
in regard to which he maintained, That as, by several judgments
of our Courts, persons guilty of carnal intercourse with parties
who had previous illicit connexion with their brothers or sisters
had been capitally punished ; and as such intercourse was w
naturally abhorrent to the feelings of mankind, the concealment
of such a circumstance amounted to that degree of fraud which
entitled the party so imposed on to be freed from the contract
3. That, at all events, he .could not be ordained to adhere un-
der the circumstances which he offered to prove,. as he would
thereby be guilty of a crime which bad frequently been capitally
punished; and consequently, as aliment could- only be swarded
on failure to adhere, that he ought not to be subjected in this bur-
den; and,
4. That the aliment awarded was exorbitant in his circum-
stances.
Eor the respondent, on the other hand, it was answered,
1. That the witnesses adduced of what passed in presence of
the Magistrate was merely corroborative of the proceedings which
then took place, and which were sufficiently established by the
extract; and that the acknowledgment (hen made was alone suffi-
cient to constitute marriage, which was further completely estab-
lished by the subsequent conduct of the parties.
2. and 3. That the notions formerly act^d on in this country, of
a sort of affinity being created by mere carnal intercourse, must
now be totally disregarded ; and that an error, such as that which
the advocator's averment would go to establish, was not of w
material a nature as to vitiate the contract of marriage; and as
to the obligation to adhere, or, on failure, to aliment, that it ne-
cessarily followed from the establishment of the marriage; and,
4. That the advocator's circumstances and situation warranted
the amount of aliment awarded.
The Court unanimously refused the bill of advocation as tothe
merits, but remitted to investigate further in regard to the amount
of aliment ; 'and they likewise refused the bill of suspension and
liberation.
Lord Glenlee*— I thought the judgment of the Commissaries ngk»
Nobody can approve of the proceedings before the Magistrates of
Glasgow* • Still it has been the practice to sustain audi a proceeding
COURT OF SESSION. 719
as proof of marriagfe. Theft is no allegation, as in the case of
Brown, (ante, Vol. II. No. 485,) that the parties were drunk; and it
is impossible to hold that they did not acknowledge themselves hus-
band and wife. The Commissaries were quite right in refusing to
allow any proof of connexion with the brother.
Lords Alloway and Pitmilly were of the same opinion.
Lord Justice-Clerk*— I also entirely concur. I cannot, however*
avoid expressing my surprise that the Magistrates of Glasgow have
not attended to the observations made by the Court in the case of
Brown in regard to these proceedings ; and I trust that the Lord
Advocate will take some steps on the remit then made to him.
Still, however improper, the parties do acknowledge themselves to
be married persons, and the extract, &c. are sufficient evidence of
it. All doubt, too, is removed by the parties going to the uncle's
house as man and wife, and taking a marriage-jaunt as such. I am
likewise clearly of opinion that the Commissaries were right in re-
fusing a proof of connexion with the brother, which has no rele-
vancy.
Advocator's Authorities^}. y—Broughton, Dec. 9. 1542, (12964); Lauder, Jon.
9. 1628, (Sup. 1. 68. and 262); Spottiswoode, Mar. 247; Brown, Nov. 12.
1680, (12267) ; Tait on Evidence, 342-6.— (3.)— Duet. 7. c. 22. v. 20; Voet. 24.
2. 15; Christen, de Cauda Matrim. 661 ; Stair, p. 26; 1. Bank. 116; 1. Hume
on Crimes, 446.
W. and A. G. Ellis, W. S. — Hunter, Campbell, and Cathcart,.
W. S— Agents.
s
Blackie, Fullarton, and Company, Suspenders. — D. of F. No. 334.
Moncreffi—Thomson.
J. Aikman and T. Ireland, Respondents. — Jeffrey— H* J.
Robertson — Pyper.
Literary Property. — A bookseller having agreed with an author for an edition- of a
history to be written by the latter in four volumes, and having obtained subscrip-
tions for all that could fall within his edition, held not entitled to prevent the
author from publishing a continuation of the history, which embraced part of
the period, and also some of the matter contained in the last of the four volumes.
In the year 1820 Khull, Blackie, and Company, booksellers in May 26. 1827.
Glasgow, (in whose right the suspenders, Blackie, Fullarton, and iD dIVisio».
Company, now stand,) entered into a verbal agreement with the Bill-Chamber.
respondent Aikman, whereby the latter, for a remuneration of Lord Medwyn.
two guineas and a half per sheet, bound himself to write a new F*
translation of Buchanan's History of Scotland, with a continual
tion to the Union, including, as the title-page bore, ' a concise
* history of the sufferings of the church of Scotland from the Re-
720 CASES DECIDED IN THE
1 * formation to the Revolution.9 This work was' to extend to four
-volumes, in twenty separate parts, and the booksellers were to be
entitled to an edition of it, the extent of which, however, was dis-
puted. The book was accordingly published in parts, which were
extended to twenty-one instead of twenty , as originally intended, the
booksellers very unwillingly agreeing to this extension, and being
circulated about the country by itinerant agents of the booksellers.
The subscriptions obtained by the time when the last part was pub-
lished amounted to 18,000, which, at the subscription price of two
guineas each, would have produced JP37,900. Each subscriber,
by the terms of subscription, was bound to take the whole work of
four volumes ; and the booksellers contended that they were en-
titled under their right to one edition, to reprint all the former
parts, so as to supply the full number of the subscribers for the
l#st part. This, however, being objected to by Aikman, a sub-
.mission was entered into for determining the extent of the book-
sellers' right, and other matters of dispute between the parties.
Pending this submission, and when it had merely been decided that
the booksellers were entitled to one edition, but before the extent
of it had been determined, Aikman entered into an arrangement
with the other respondent Ireland, £ bookseller in Edinburgh, for
publishing a fifth and sixth volume of his History ; and accord-
ingly there was advertised to be published by him * Part 1. Vol. V.
4 of a new translation of Buchanan's History of Scotland, with
* continuation by James Aikman, Esq.' Agreeably to this ad-
vertisement, there was published by Ireland ' Part 2& Aikman's
4 History of Scotland. — Vol. V. Part 1. containing annals of the
* persecution in Scotland,' &c. ; and an ' Address' prefixed to it
contained the following statement :— * Owing to circumstances
* unnecessary at present to detail, I was obliged to finish my his-
4 tory to the Union in' four volumes, which I have done to the
* best of my ability ; but the last part having so much matter to
.' compress into little space, left me only room for an abridgment
4 of some of the most important occurrences*— a defect, if it may
* be called one, which the fifth volume is intended to supply, by
' giving my readers a full and complete view of the period it em-
* braces, one of the most interesting in our history — the annals of
* the persecution. In doing this, I have repeated part of what
4 was in the fourth volume, which I could not avoid, to keep up
4 the connexion. To those who are not possessed of the preced-
' ing volumes, this was absolutely necessary to make it intelli-
* gible ; and to those who have them, I shall, that they may not
* pay twice for the same thing, give cancels gratis along with the
COURT OF SESSION. 721
* last part of the present work, and at the same time directions to
* the binder.' '
. This part, which was published prior to the last part of the
fourth volume, accordingly commenced at a period already gone
over more briefly in the fourth volume, and contained, in parti-
cular, seventeen pages word for word the same with the manu-
script previously given for publication in the twenty-first part to
the suspenders. On the quarrel taking place with Aikman, the
suspenders advertised a continuation by one Struthers, to be pub-
lished by themselves conform to the previous volumes by Aikman,
and then presented a bill of suspension and interdict against Aik-
man and Ireland on the appearance of the first part of their con-
tinuation, praying to have them interdicted from proceeding
further with the publication of the work, on the ground that it
tended to injure and interfere with the sale of the four previous
volumes, to which they had right.
To this it was answered, That the true object of the suspend-
ers was to secure to themselves the continuation of the work ; and
that, supposing they should be found entitled to an edition ex-
tending to the full number of copies subscribed for when their last
part was published, their right could in no way be injured, as
each subscriber was bound to take the whole book ; so that all
that they could possibly be entitled to was in fact already sold ;
and besides, that, so far from injuring the sale of the previous
volumes, it would in fact be benefited, by making the work more
complete as a whole.
The Lord Ordinary having reported the bill, it was unani-
mously refused by the Court.
The Court proceeded on the ground, that the booksellers had in sub-
stance sold the whole of the edition to which they had right, and so
could not be injured by the publication objected to,' even if it had
been calculated to produce any injury to the previous part of the
work*
T. R. Robertson, W. S. — J. and W. Dymock, W. SL— Agents. .
J. Bullock, Pursuer. — Murray — Mere. No. 335.
A. Cbawfdbd and Others, Defenders.— Scl<-Gcn. Htipe—
D. MNeiU.
Oafa— This was a question depending upon the impart of the May 29. 1887.
oaths of several defenders. The Lord Ordinary decerned against ^ jytrnton
them, and the Court adhered. Lord Eldin/
D.
W. and A. O. Ellis, W. S. — J. M. Lawrib, W. S. — Agents,
7*2 CASES DECIDED IN THE
No. 336. A. Fraser, Pursuer.— Jeffrey— A. JIPNetU.
A. T. F. Feasee, Defender— D. o/F. Moncreiff—RuAerfiiri
Entail— Landlord and Tenant.— An heir of entail in possession having granted i
lease, binding himself and hia heirs to pay for meliorations— Held that an actios
for payment of them lay against his representatives, and not against a succeed,
ing heir of entaiL
May 89. 1837. The late General Simon Fraser executed an entail of his es-
1st Division tote °^ Lovat, in favour of himself and a series of substitutes, re-
Lord Eldin. seeing power to execute a trust for thfe liquidation of his debts,
s. He accordingly disponed his estate to trustees for that purpose,
declaring that so soon as the objects of the trust should be ac-
complished, the trustees should denude in favour of the heirs of
entail, and that these heirs should be bound to possess under the
limitations and restrictions of that* entail. The trustees then took
possession, and were infeft, and thereafter General Fnuer ad-
dressed to them this letter : — * As you seem to think written
' authority necessary, I hereby empower you, in my name, to
' promise to the tenants over all my estates meliorations for houses
' and buildings that may be made and erected by them, not ei-
* ceeding three yea>rs rent of the respective farms, to be paid at
* their removal by the incoming tenant ; and I oblige me and my
' heirs and successors to implement such promise.'.
In 1785 the trustees Jet the farm of Dalcrag to the pursuer
for 19 years, at the rent of i?16. 12s., and it was stipulated that
the pursuer or his heirs should, at the termination of the tack,
4 upon their removal from the said lands,. be entitled to receive
< from the heritor or incoming tenant the value of such bouses
< and buildings, including stone-dikes, as should then be upon
€ the said lands,1 < to the extent of three years rent or tack-duty
c thereof, provided the value of the said meliorations should
' amount to so much, over and above the landlord's standard,
c and as ascertained by appraisement.'
In 1808 the trust was terminated by an act of Parliament, and
the General being dead, the Honourable Archibald Fraser entered
into possession in virtqe of the entail, under which he made up
titles. In the course of the same yean he obtained from the
pursuer a renunciation of his lease, and immediately granted to
him a new one for 19 years from Whitsunday 1808. By this
latter deed it was ' agreed upon between the parties, that at, or
* as soon after the execution of this lease as possible, die whofc
' houses, biggings, dikes, and enclosures upon the foresaid posses-
* sion, phall be comprised hy one judicious man qaipetf by **
COURT OP SESSION. T»
( of the parties contractors, agreeably to the terms of the said
* original lease; and that one or more schedules thereof shall be
' made up, to be signed by the appreciators, and by the said
' Honourable Archibald Fraser of Lovat, and the said Alexander
* Fraser, and reference made therein to these presents, whereof
' they shall be considered as part ; and the said Alexander Fraser
' agrees to defer all demands on the said Honourable Archibald
' Fraser and his foresaids, on account of the said meliorations,
' until the expiry of this present lease ; and. further, binds and
' obliges himself and his foresaids to keep, maintain, and uphold
< the said houses, biggings, dikes, and enclosures contained in
( the said states or schedules, in equally good repair and condi-
' tion as shall be therein expressed, during the whole currency of
' this present lease, and to leave the whole in the like good con-
' dition at the expiry thereof; it being hereby declared, that the
' said Alexander Fraser and bis foresaids shall then, and not
' otherwise, be entitled to receive from the said Honourable Ar-
' chibald Fraser of Lovat and his foresaids, or the succeeding
' tenant, the sum mentioned in the said schedules or estimates,
' as the value of the said meliorations, provided the sartie shall
4 not exceed the sum allowed for the said meliorations by the said
* lease granted by the said trustees on the estate of Lovat ; pro-
* vided always, that the said houses, biggings, dikes, and enclo-
' sures shall be found, in the manner above expressed, to be
' worth that sum, and also provided, that they shall be found,
1 at the expiry of the present lease, to be in equally good con-
c dition and repair, and- worth as much as they shall' be found
* and stated to be in the said schedules and estimates, made at
' the commencement thereof,* &c. In 1816 the Honourable
Archibald Fraser died, and was succeeded as heir of entail by
Thomas Alexander Fraser, and by the defender as heir of pro-
vision and general disponee. On the termination of the lease in
1821, the pursuer brought an action against the defender as re-
presenting the late Honourable Archibald Fraser, for payment
of meliorations under the lease granted in 1785, in support of
which he founded upon the lease of 180?, as containing, an ob-
ligation to make payment of them.
On the other hand, the defender maintained, That the claim lay
only against the heirs of entail, or incoming tenant ; — that by the
universal practice of the district, those claims lay against the in-
coming tenant ; — that the entail was qualified by the above letter,
which was intended to give effect to the local practice ; — and that,
at all events, the pursuer was bound to have proceeded against
the heir of entail in the first place.
TS$ CASES DECIDED IN THE
To this it was answered, That the late Honourable Archibald
Fraaer had bound himself and his heirs personally to pay the
meliorations ; — that he was the party benefited by them, and that
the pursuer had no jus actionis against the incoming tenant; nor
could he proceed against the heir of entail, as the meliorations
were not constituted in terms of the statute.
The Lord Ordinary assoilzied the defender; but the Court
altered, and decerned in terms of the libel.
The Judges were unanimously of opinion, that the claim of the pur-
suer lay directly against the defender, who represented the party
• by whom the obligation was granted, and who derived the benefit
ffom the meliorations ; and that the question as to the liability of the
heir of entail had been settled by repeated decisions, and particu-
larly by that of Tod v. Moncreiff, Jan. 14. 1828, (ante, VoL If.
. No. 110,) which had since been affirmed on appeal.
L» Mackintosh, S. S. C. — 2£. Macbean, W. S. — Agents.
No 337- Earl of Aberdeen's Trustees, Pursuers. — H. J. Robertson.
C. Gordon, (Shand's Trustee.) — Sol-Gen. Hope—Cowcuu
«
29 1827. This was a complicated case of accounting, in which three ac-
— countants reported in favour, of the defender ; but the Court, on
lOTw?Rid,0!f* ^P01* °f l^e Lord Ordinary, pronounced judgment in favour of
s^ the pursuers.
Morisov and Burnett, W. &— J. Shand, W. & — Agents.
No 338 ^' Sharp, Pursuer.— Jameson.
G. Thomson and Others, Defenders. — Marshall*
May 29. 1827. The Lord Ordinary having struck out certain articles in a
condescendence' by the pursuer, he presented a reclaiming note,
» Arr\n<,\+t\e which the Court refused', with a certain reservation in his favour.
— Agents.
\
COURT OF SESSION. 786
A. M'Kznzie, Pursuer of a Multiplepoinding. — Skene. No* 339*
Mrs. ATKenzie and T. IVTKenzie, Claimants. — Jameson.
Multipiepoinding.— The nominal raiser of a multiplepoinding not obliged to con-
sign till relieved of a cautionary obligation come under by him for the common
debtor to a much greater amount than the fund in medio.
A summons of multiplepoinding having been raised in the name May 29. 1827.
of Alexander ATKenzie, of certain sums owing by him to the 2d Division,
common debtor, including a sum for which decree in foro had Ld. Mackenzie,
passed against him, he was required by the claimants to consign F*
the fund in medio. This was objected to by MTCenarie, on the
ground that he was cautioner for the common debtor to an ex-
tent greatly beyond the amount of the fund in medio in a con-
firmation as executor in the Commissary Court ; and that, being
merely a nominal pursuer, he must be considered in the light of
an ordinary defender, who could not be obliged to consign till such
an obligation was discharged.
To this it was answered, That he was not entitled to plead re-
tention on grounds existing at the date of the decree in foro against
him, and not then stated by him; and, at all events, that he could
ask no more than that the fund should remain consigned till he
was relieved.
The Lord Ordinary sustained ' the dilatory objection stated
' for the nominal pursuer Alexander M'Kenzie, that he ought
( not in this process to be ordained to make payment or consign*
* ation of the funds libelled, or any part of them, until he shall
' be relieved of his liability as cautioner5 for the common debtor ;
and the Court unanimously adhered.
The Court thought, that under the interlocutor the claimants were
not precluded from removing the objection to consignation, by find-
ing caution to relieve the nominal pursuer of the effects of his cau-
tionary obligation for the common debtor; and one of their Lordships
observed that the case of the Queensberry Executors v. Tatt (ante,
Vol. I. No. 486.) applied directly to the present.
— .
J. Anderson, W. & — T. M'Kenzie, W. S. — Agents.
vol. v. 3 a
796
CASES DECIDED IN THE
No. 340.
Misses Gibson, Pursuers. — D. qfF. Moncreif^Jardint^
Boswell.
R. Craig and Others, Defenders. — Jeffrey — A. iTNeSL
May 30. 1827. A circumstantial question relative to a right of water for the use
1st Division. °^ m^s. The Lord Ordinary pronounced a special interlocutor,
Lord Eldin. an^ the Court adhered.
D.
J. Blair, W. S. — W. Anstruther, W. S. — Agents.
No. 341.
May 30. 1887.
1st Division.
Lord Eldin.
D.
A. Walker, Pursuer.— 2). qfF. Moncrtiff—Jamacm.
W. Inglis, Defender. — Skene — Alison.
Cautioner— Relief.— h party having interposed as cautioner for tiro dbMri
cautioners in a debt, which was settled by dividing it into two equal puts, a*4
granting a promissory note for each half ; and the interposing .cautioner having
put his name on both— Held entitled to relief from one of the original cautioner*
who alleged that he had interposed for the other cautioner alone.
James Wilson, having been appointed agent at Cupar for the
> Commercial Banking Company, granted a bond, along with Henry
Inglis and Thomas Aitken as his cautioners, for the faithful dis-
charge of his office. Soon thereafter Wilson was found to be
deficient to the extent of .£9000, which was ultimately reduced
to ,££746 : 5 : 9- The bank haying become urgent for payment,
a transaction was entered into with the cautioners, Inglis and Ait-
ken, by which it was agreed that the balance should be divided
into two sums of .£1373 : 2 : 10 each, for which bills should be
granted by Inglis and Aitken, with cautioners. With this view,
a promissory note was granted by Henry Inglis and another party
to Aitken, who indorsed it to the pursuer Walker, and by him
it was indorsed to the bank. l"he other bill was also in the farm
of a promissory note, and was .granted by Aitken and Walker to
Henry Inglis, who indorsed it to the bank ; so that, in this way,
Walker became hound as cautioner for payment of the whole
debt. The first of these bills having been paid, and the pursuer
having been called on to pay the other, he brought an action of
relief against the defender Inglis, as representing Henry Inglis.
In defence it was maintained, That the arrangement was, that
each of Inglis and Aitken, the original cautioners under the bond,
should find caution for his half of the debt ; — that accordingly
Henry Inglis had got a cautioner for his half, and had retired
his bill, and that the pursuer had interposed as cautioner for
Aitken, against whom alone he was entitled to claim
COURT OF SESSION. 787
To this it was answered, That the pursuer had interposed his
credit both for Aitken and. Henry Inglis, and that no such ar-
rangement as that alleged had been made.
The Lord Ordinary decerned in terms of the libel, and the
Court adhered.
J. M^cdonbll, W. S. — G, Lyon, W*. S. — Agents.
C. Mackintosh, Pursuer. — Skene — Robertson. No. 342*
D. 6. Forbes, Defender Jeffrey — Tait.
Road Act.— This was a question as to whether the defender May 30. 1837.
had found security for, or paid certain sums under a local road laT DIVIS10if.
act, in which case he was entitled to resist payment of an assess- Lord Eldin.
ment. The Lord Ordinary decerned against him for the assess* D.
raent ; but the Court, being satisfied that he was within the pro-
tection of the statute, altered, and assoilzied him.
D. MIntosk, W. S*— Taits and Young, W. S— Agents.
D. Barry, Pursuer. — Sandford — Napier. No. 343.
J. Geddes, Defender. — D. qfF. Moncreffi—D. Macfarlane.
Poor's Roll — Expenses. — A party on the poor's roll cannot be obliged to find cau-
tion for expenses ; but Observed, that it is not incompetent to oblige him to make
payment of expenses previously awarded, before allowing him to proceed with his
action.
Barjlt, who bad executed a disposition omnium bonorum in May 30. 1827.
favour of his creditors in a process of cessio, having thereafter 2d division.
raised an action of count and reckonipg;against Geddes, to whom Ld. Cringietie.
he had previously conveyed certain property in trust, the latter B-
pleaded in defence, That Barry, being divested by his disposition
omnium bonorum, had no title to pursue. The Lord Ordinary
found that ' it was not competent for him, hoc statu, to insist in
' this action ;' and the Court adhered, remitting to his Lordship
to consider the evidence of an alleged retrocession from his cre-
ditors produced by Barry along with his reclaiming petition, (see
ante, Vol. IL No. 446,) and found him liable in certain expenses.
When the cause returned to the Lord Ordinary, Barry produced
a retrocession from twelve of his creditors, constituting, however,
but a small portion of the whole number, and got himself put on
the poor's roll. Geddes then contended, L That the retrocession
did not afford a title to pursue ; and, 2. That, at all events, Barry
could not be allowed to carry on the action until he had paid the
expenses previously awarded, and found caution to pay any sub-
sequent expenses which might be found due. The Lord Ordinary,
S a 8
728 CASES DECIDED IN THE
before deciding whether Barry had now, in consequepce of the
retrocession, a sufficient title to pursue, ordained him to find un-
exceptionable caution, within a certain time, * to pay Mr. Geddes
' such expenses as may be awarded to him in the course of this
' action, if the same shall proceed, and also to pay to him the ex-
* pense already awarded and taxed, in case the same have not
( been already paid.' Against this interlocutor Barry reclaimed,
and the Court holding, from a statement made by Geddes* coun-
sel at the bar, that the previous expenses were settled, and being
of opinion that if a party admitted to the poor's roll had truly a
title to pursue, he could not be fettered with the obligation of
finding caution for expenses, pronounced this interlocutor : — c In
' respect that it has been stated from the bar that the previous
' taxed expenses have been paid or settled for, recall that part
' of the interlocutor of the Lord Ordinary which ordains the re-
' presenter Barry to find caution to pay Geddes such expenses
* as may be awarded to him in the course of this action, and remit
' to the Lord Ordinary to hear counsel for the parties farther, and
' thereafter to do in the cause as to his Lordship shall seem just,
* it being competent for the parties to be heard also on the ques-
* tion of title.1
Loan AllowaYt— The Lord Ordinary seems to hold that this mas
has a title, and the report of the lawyers for the poor establishes thai
he has a prohabilis causa litigandi. On what ground, therefore, can
he be obliged to find caution for expenses ? The same rule would
apply to every person on the poor's roll, and the consequence wouU
be, that nobody could have the benefit of that provision. It appeals
to me still more objectionable that he should he compelled to pay
expenses already awarded, before he can proceed with his
This party is just in the situation of any other litigant, and I do
think the Lord Ordinary can do .more than pronounce decree for ex*
penses, so that diligence may pass on it, to tim effect of rMM*-g
the party to recover them in the usual way ; but I have no con-
ception that the action can be stopped till they are actually recovered.
Lord Justice-Clbrk_ .That part of the interlocutor ordering the
previous, expenses to be paid is conformable to' the practice of die
Court in other matters. If they are settled, however, that qnestma
is at an end ; but we have no right to impose the penalty of finding
caution for future expenses, if the title be once admitted. Tina, how-
ever, remains for the consideration of the Lord Ordinary.
Lords Glenlee and Pitmilly concurred.
Pursuer's Authority.— Cariing, March 10. 1896, (ante, Vol. IV. No. 33B.)
Defender^ Authority.— Manud and Co. Jan. 21. 1826, (ante, Vol. IV. No. 359.)
N
J. Macallan, W. S— J. Singer, W. S— Agents.
J
COURT OF SESSION. 729
R. Speir, Pursuer. — Bell — Shaw. No. 344.
J. Dunlop, Defender.— D. of F. Moncrdff^-Cuninghame.
Stat. 1696, c. 5.— Bankrupt — Expenses.'— L— - Held, on a remit from the House
of Lords, and altering the previous judgment in the cause, (ante, Vol. IV. No. 74.)
That a payment in cash by a bankrupt, within sixty days from hi* bankruptcy,
to an indorser of a bill accepted by him but not then due, ' as a provision for
4 payment of the said bill when it became due,1 is reducible under the act 1696, .
c. 5, independent of fraud at common law.— »2.— Question raised, .but not de-
cided, whether, on a simple remit to review, it be competent to award expense*
in the House of Lords.
In a reduction at the instance of Speir, trustee on the seques- May do. 1827-
trated estate of John DunJop, for setting aside a payment of .££20 2d DrFIMOW.
made by the bankrupt, within sixty days of bis bankruptcy, to F.
his nephew, the defender James Dunlop, as a preference struck
at by the act 1696, and as a fraud at common law, the following
issue was sent to a Jury : — ' It being admitted that a bill for
£220, dated 6th September 1820, payable three months after
date, and due on 9th December 1820, accepted by John Dun-
lop, was indorsed by James Dunlop, and discounted at the
branch of the Commercial Bank at Beith previous to the 18th
October 1820 : It being also admitted that the estate of John
Dunlop was sequestrated on the 2d day of December thereafter :
It being also admitted that the said John Dunlop sold to Wil-
liam Dunlop, uncle to James, certain houses for the sum of
£600 on 18th October 1820 : Whether, within sixty days of
the admitted bankruptcy of the said John Dunlop, the defender
James Dunlop did enter into an agreement or concert with the
said John Dunlop, the. bankrupt, for the purpose of obtaining
security or payment of the foresaid bill for £220, and did for
that purpose contrive and assist in carrying into execution the
sale of the bankrupt's heritable property aforesaid ? And whe-
ther the defender, by means of the said sale, did obtain from the %
said John Dunlop the sum of £220 out of the proceeds of the
said sale on the said 18th day of October 1820, or previous to
the 9th day of December 1820, in satisfaction of the said bill,
or as a provision for payment of the said bill when it became
due ?' On this issue a verdict was returned, finding ' that within
sixty days of the admitted bankruptcy of the said John Dun-
lop, the defender James Dunlop did not enter into any agree-
ment or concert with the said John Dunlop, the bankrupt, for
the purpose of obtaining security or payment of £220 ; and that '
the defender James Dunlop, by means of the sale, did obtain
from John Dunlop, by the hands of his wife, the sum of £220
on the said 18th of October, as a provision for payment of the •
said bill when it became due/ This verdict having come to bo
780 CASES DECIDED IN THE
applied in the Court of Session, their Lordships repelled the
reasons of reduction, and assoilzied, as mentioned more fully ante,
V«LIV. No. 7.4, (which see.)
An appeal wa*> then taken by the pursuer against this judg-
ment, in which the House of Lord* orim^ 'That the slid
c c&use be remitted back to the Court of Session in Scotland to
* review the interlocutors complained of, and to consider whether,
' consistently with the findings of the Jury, the payment or de-
' posit of the ,££20 was or was not reducible under the provisions
* of the statute 1096, or otherwise ; and, after reviewing- the said
€ interlocutors complained of, that the said Court do and decern
' in the said cause, as may be just.'
On 8 petition being presented to apply this judgment, the
Court ordered Cases, in which the same pleas were maintained
as had been argued in the House of Lords ; * and, on advising
these Cases, the Court altered their former interlocutor, and re*
duced, decerned, and declared in terms of the libel.
The pursuer then made a motion to have the expenses formerly
awarded against him, and paid under interim execution, repeated,
and to be found entitled to the whole expenses of process, includ-
ing those of the appeal The Court, without deciding that it was
incompetent to award the expenses of the appeal, held that at all
events they ought not to be allowed in this case. Their LorfU
ships, however, ordered repetition of the expenses paid by the
pursuer under the interim execution, and found him entitled to
the expenses in this Court prior and subsequent to the appeal*-*
tiie former subject to modification ; but found neither party en-
titled to the expenses of the Jury trial.
(iORd Justice-Clerk.— I concurred in the judgments formerly pro-
nounced, but with very considerable hesitation. I have reconsidered
the case, and am now satisfied, attending to the remit by the Home
of Lords, and the view taken by the noble and lamented Lord who
moved the judgment, that the act 1696 does strike at this transac-
tion, and that we must now decern in terms of the libeL Uncare-
ful terms in which the matter has been remitted deserve partaceav
attention, vis. * to consider whether the payment or deposit was or
* was not reducible,' &c It has always been maintained that tak
was a direct payment; but it is clear, from the words 'payment or
' deposit,' that we have an indication of what were the difficulties felt
in the House of Lords. Now, when we look at the second finding
of the Jury, this word * deposit' applies accurately to what is there*
by found to have taken place. It is impossible to hold that the Jury
9 See Speir ». Dunlop, May ». 1826, Wilson and Shav't Appeal Gates, p. 2B.
COUBT OF SESSION. 731
found that the £280 was given in payment of the bill; on the con-
trary, they found that it was ' as a provision for payment' when the
hill should mil due. They found that this took place on the 18th of
October, the bill not being due till the 9th December. That being
the state of the facts, the question of law is thi»-~-Doea a deposita-
tion of money in the hands of a party, jointly liable on a bill, to an-
swer the bin when it becomes due* mil under the statute 1696? I
jme no ease quoted by the defender which is similar to this. Even
the strongest, that of Fetrier, is not at all parallel. Here the full
sum was given to a man who might put it into a bank to fructify
frr his own behooC Now, is it any stretch of the act 1696 to say
that this is money lodged in security of a debt not due? If it had
been found in the verdict that it had been handed over in imme-
diate payment, we might have been hampered by it; but that is
not the finding of the Jury. It is not a payment in immediate
liquidation, but for provision, Ac* ; and if it be, as such, brought under
the act 1696, it supersedes the necessity of any investigation as to
fraud. It is said that the other finding of. the Jury prevents the
operation .of the act, by finding no concert or agreement. But al-
though that is negatived, it does not meet the other part, that the
payment was as a provision for a bill not due, for under the act it is
not necessary to. prove fraud; and although it may be competent,
under the words of the remit, ' or otherwise,' to take into view tbe
question as to common law, I am Inclined to lay that aside as unne-
cessary, and to rest my opinion entirely on the act 1696.
Lord Pitmii.ly.~I never felt greater difficulty in> soy casei I am
sensible of the change produced by the remit ; but still I cannot say
I have made up my mind decidedly* I am much moved by this,
that, according te the armament now insisted in* the Jury,trieJ hss
been entirely thrown away. The verdict has decided nothing that
has not been admitted from the beginning. Tbe payment of £220
was admitted from the beginning. It is said that this was an ad-
mission of a different kind, viz. admission of payment, while the
verdict says it was a provision for payment. But the history of the
bill was known and admitted, and that it was not payable till 9th
December ; so that all tbe facts were clearly admitted. This, to be
sure, does not go to the point of law, although it would go to this,
that the pursuer should pay tbe previous expenses ; for what was
the use of going on with the trial, if at last it was to be put on the
point of law, which was equally open before the trial? But they
would not give up the plea of fraud, and were only driven from it by
the verdict of the Jury. This occasions my doubts ; for, if it was not
for the verdict, it would have been a very different ease, and there
would have been little difficulty in deciding it as it stood before the
trial. - Although, however, I have great hesitation in viewing the
case in the same light now, when the allegation of fraud has been
made and negatived, yet I am not prepared to oppose the judgment
proposed to be pronounced.
782 CASES DECIDED IN THE
Lord Alloway. — I have again considered this case most ittenthdy.
If it had been to be decided on the admissions before the trial, I
should have come to the conclusion that they were suffirieat for
making out the pursuer's case, and I do not see why this cause wit
ever sent to a Jury. But it did go to a Jury, and on an issqe sot
fit to try the case, , The issue should have been, Was this s boss
fide payment under the statute of 1696 ? In my former opinion I
was misled on two points. The Lord Ordinary had taken the ad-
missions, &c in addition to the verdict, and I considered the verdict
like an oath on reference ; but in entertaining that opinion I was
carried a little too far. I also considered that this might be held a
fair bona fide payment, but I am satisfied I was wrong. I admit that
a payment in cash is not affected by the act 1696, but it most be a
fair bona fide payment, according to the ordinary course of trans-
actions of mankind. In Ferrier's case, the bill was sent at the
• ordinary usance, — it was a regular payment in the ordinary crane
of trade ; and I cannot compare that with the present, which ■
not a payment at all, but a provision, and quite different from the
cases of bona fide payment referred to. There is therefore an end
to the question, and we see that what they hold to be t bona fide
payment in England is totally different from this ; and as I cannot
bold it to be a payment, I must consider it as clearly affected by the
act 1696. If compelled to give an opinion on common lew, I might
come to the same conclusion, but the grounds I have stated are
sufficient.
Lord Glenlkk. — It would be superfluous for me to enlarge on the
question, as I was formerly against the interlocutor. On the ques-
tion of expenses, it may have some influence that the Jury trial was
unnecessarily resorted to, but it can have no effect on the jodgment
to be pronounced.
Pursuer'* Authorities.- .2. Bell, 222. 243 ; Moncrei$ Feb. 8. 1694, (1054); Crrf.
tors of Carlowrie, Jan. 15. 1696, (4930) ; Bradley, April 26. 1793, (*. T. R- **
2. Bell, 227) ; M'Math, March 1. 1791, (Ben's Cases, 22) ; Forbes, Jan. &
1715, (1124) ; Durward, Feb. 2. 1700, (1119) ; Campbell, Jan. 16. 17i3;<H»);
Manson, July 16. 1671, (App. 7. v. Bankrupt) ; Brown, July 6. 1764, (BWi
Marshall's Trustee,* Jan. 21. 1794, (1144); Young, July 9/1736, (Elchies, No./.
». Bankrupt) ; Crawford, Nov. 16. 1752, (ibid. No. 28) ; Blaikie, May 9. Iff*.
(887) ; 4. Erak. 1. 43; Barbour, May 30. 1823, (ante, Vol. H. No. 335); Verw*
(2. T. R. 648) ; Tamplin, (2. Campbell, 312.)
defender'* Authorities.- 4. Ersk. I. 41-4 ; 2. Bell, 225-255-257 ; Elchies, e. Bank-
rupt, No. 26 ; Durward, Feb. 2. 1700, (1119) ; Campbell, Jan. 16. 1713,(1^)5
Buchanan, Jan. 25. .1733, (1125); Forbes, Jan. 26. 1751, (KUk. and 10#);
Pean, Aug. 1. 1760, (907) ; Ferrier, June 2. 1808, (2. Bell's Com. 229.)
W. Patrick, W. S— R. Dunlop, W. &— Agents.
COURT OF SESSION: 73S
J. Greig, W. S. Suspender. — Cuninghame. No. 345*
C. Peebles,. Charger. — D. qfF. Moncrnff—Baird.
Interest. — Circumstances in which a party who had purchased an estate burdened
with an heritable security, but which was subsequently set aside, was held liable '
only in four per cent, interest on the part of the price corresponding to the
amount of the debt till set aside, and thereafter in five per cent. ,
The estates of James Harkness, proprietor of Glenlean, having May 31. 1837.
been sequestrated under the Bankrupt Act, Peebles was appointed j8tdiv1810W.
trustee, and as such acquired right to Glenlean. That property Lord Eldin.
was burdened with several heritable securities, and particularly S.
with one for £ 1200 in favour of Robert Watson. The property
was afterwards sold by Peebles to David Greig, writer in Greenock,
for behoof of the son of the bankrupt, at the price of «£2500, pay-
able at Whitsunday 1823, which was declared to be the term of
entry. For payment of this sum David Greig became person-
ally liable, and James Greig, writer to the signet, interposed as .
cautioner. The latter, having been obliged to pay the price, ac-
quired right to the purchase. A dispute having then occurred as
to the payment of the price in consequence of the existence of
the burdens, a suspension was brought by Mr. Greig, and also
a multiplepoinding, in which he consigned the balance remaining
after deduction of the heritable securities. An action was there-
after brought t>y Peebles for setting aside the heritable security
of Watson, on the ground of irregularities, in which he succeeded,
on the 9th of December 1825. (See ante, Vol. IV. No. 218.) In
this way the ^£1200 fell to be paid to Peebles, and a question then
arose between him and Greig as to the rate of interest for which
the latter was liable on the sum of i?1200 thus set free. The
Lord Ordinary found that ' James Greig, who is now in right of
' the purchaser of the lands of Glenlean, is only liable in interest
' on the price thereof, at the rate of four per cent, per annum, from
' the term of entry till he receive a disposition of the lands.'
Peebles then reclaimed, and contended, That he ought to be liable
in five per cent, from the date of the purchase, seeing that he
ought to have consigned the whole sum ; or that, at all events,
he was liable at that rate from the time the heritable security
was reduced. The Court pronounced this interlocutor :—
* Recall the interlocutor complained of; find the said James
' Greig, now in right of the purchaser of the lands in question, only
' liable in four per cent, upon Mr. Watson'sdebt, until Mr. Watson's
' heritable security was set aside, after which find the said James
* Greig is liable in five per cent, upon the said debt; and find the
734 CASES DECIDED IN THE
' said James Greig liable in five per cent, upon the balance of the
• price of the lands in question, except in so far as the same has
' been consigned by him.1
W, Waddel, W. S.— J. Grtig, W. S— Agenta.
No. 346. J. and W. Dovs, Pursuers,—/), of F. Mtmcreiff—Skene.
A. Smith and Others, Defenders. — Jejfrey^amewnr-G. Bel
Et h contra.
Testament.— A party who had made a testament in America, disposing of iU hit
property, having thereafter come to Scotland, and executed a mortU caul as-
signation o( the stocking of a farm there, and having subsequently recalled that
assignation, and declared that the farm-stocking * should be considered * p»*
1 of his ezecutry, and be regulated by the general law of moveables in its appro*
* priation,' but not having revoked his testament— Held that the farnv^ockiBg
fell to he distributed under the testament, and did not go to the nearest of ki&
' according to the law of Scotland aa to intestate succession.
May 31. 1827. In 1811 the late William Dove, then resident in New York,
So Divisioif. America, executed a last mil and testament, whereby he be-
Ld.Mackenzie. queathed his whole property,' heritable and moveable, to certain
F* persons, and appointed Smith &c to be his executors. He after-
wards came to Scotland, and took a lease (secluding assignees) of
the farm of Trogden in the county of Roxburgh for 21 yean
lifter Whitsunday 1818, which he stocked, and occupied till his
death in 1824. In 1815 he, with consent of the landlord, ex-
ecuted an assignation, by which, in the event of his death, he
conveyed to his brother, the pursuer John Dove, in liferent, and
John's second son in fee, whom failing, to certain other persona,
the lease of the farm of Trogden, ' and also the whole farm-stock-
* ing of every description which might be upon, the said farm
« at his the said William Dove's death/ But in 1818 he sub-
joined to this assignation a codicil in the following terms :— 4 1
* William Dove, considering that by the within assignation 1
c had assigned and disponed to and in favour of my brother Jobo
* Dove, whom failing, as within mentioned, the whole farm-stock-
* ing of every description on my farm at the time of my death:
* And now considering that it is my wish that the said fiam-stock-
' ing should be considered as part of my executry, and be regn-
< lated by the general law of moveables in its appropriate
* Therefore I hereby recall 'such disposition and assignation in
4 so far as concerns the said farm-stocking, but confirm the within
c deed in every other respect.1 Under this codicil, declaring1^1
the farm-stocking should be considered as part of the testator5
executry, and be regulated by the general law of moveables in
its appropriation, it became a question, after bis death, whether
COURT OF SESSION. 786
the farm-stocking was to be divided among the nearest of kin, ac-
cording to the loir of intestate succession in Scotland, or whether
it war to fall under the distribution of the will executed in
America, and which had never been revoked either in whole or in
part. To have this tried, mutual actions were raised by Smith
fcc, the executors under the will, and by John and William Dove,
the nearest of kin. In these conjoined actions the Lord Ordi-
nary assoilzied the executors from the conclusions of the action
at the instance of the nearest of kin, and decerned against the
latter in the declaratory conclusions at the instance of the execu-
tors, thereby finding that the farm-stocking in question fell to be
distributed along with the other executry, agreeably to the pro-
visions of the will executed in America.
The Court unanimously adhered.
W. Mackenzie, W.&— Lowand Rutherford, W. S. — Agents.
J. M'Naib, Pursuer. — D. cfF. Mancretff— Jameson — Ivory. » No, 847*
R. Geay and J. Woodrop, Defenders.— Jeffrey — Forsyth—
Skene.
Decree* Arbitral. — Arbiters under a submission, which empowered them to pro-
nounce interim decrees, and declared that although the submission should expire
as to points on which they differed in opinion, it should still continue as to those
on which they agreed, having pronounced two interim decrees, copies of which
only were delivered to the parties, the principals remaining in the hands of the
clerk ; and having afterwards declared the submission terminated, and declined
to pronounce any deliverance on a memorial by the clerk as to a demand made
by one of the parties to have the interim decrees put on record— Held that the
decrees were invalid.
The pursuer Mr. M'Nair, and the defender Mr. Gray, were pro- May 31 . 1827.
prietors of different fields of coal, of which that belonging to Mr. 2d Divisiov
M'Nair had the higher level. In consequence of some operations on Ld. Mackenzie,
the part of M'Nair which threatened to flood with water the in- * M'K.
ferior fields which were occupied by Mr. Woodrop along with
Mr. Gray, and were alleged to have already occasioned con-
siderable damage, the parties entered into a submission. By
this submission, M'Nair on the one hand, and Gray and Wood-
rop on the other, referred to two gentlemen, chosen as arbiters, c all
4 disputes, differences, debates, and debateable matters being and
1 subsisting between them, and all debts, claims, and demands due
( and competent to the parties, or either of them/ relative to their
respective collieries, with power to the arbiters c to pronounce de-
' cree or decrees, partial or total, interim or finaU The parties
bound themselves to fulfil and perform * whatever decree or de-
* cxees, partial or total, interim or final, the said arbiters in ctae
786 CASES DECIDED IN THE
* voice shall give forth and pronounce ;' but it was declared * that
( the said arbiters shall not have power to name an oversman to de-
' cide between them in case of their differing in opinion ; but that,
c in case of their so differing in opinion, this submission shall fall
* and expire, but only as to those points on which they so differ,
( and shall subsist and remain in full force as to any point or
* points in which they may agree in opinion.1
The arbiters named having accepted the submission, they, after
some procedure, pronounced an interim decree-arbitral, finding
that ftTNair had no right to cause the water of a certain field to
•flow into the colliery of Messrs. Gray and Woodrop, or to carry
on any operation which might produce that effect, prohibiting
him from doing so, and finding him liable in the damages which
might be sustained by them or their successors, in the event
of his contravening this prohibition, and also reserving the con-
sideration of the other points submitted. This interim decree
was duly tested ; it contained a clause of registration, and copies
were, on the same day on which it was signed, sent tathe parties,
but the original remained in the hands of the clerk to the sub-
mission. Some months thereafter the arbiters pronounced a se-
cond interim decree,. proceeding on the narrative that they had
* pronounced and issued an interim decreet-arbitral,' (being that
above mentioned,) and that they now judged ' it proper and
* necessary to pronounce a second interim decree-arbitral in the
* said matters.' By this decree the arbiters, after referring to
the former one, * a copy of which interlocutor was given out
' to the agent for each party of the date it bears, and which in-
( terlocutors we hereby adhere to and confirm,' prohibited
ATNair from using a particular pump or other artificial means
for raising the water in his colliery to such a level as would make
it issue into the coal-field of Gray and Woodrop; found him liable
in the damage already occasioned by the use of the pump from a
certain date, and appointed Gray and Woodrop to give in a con-
descendence of the damages claimed on that account This decree
contained, like the fortner, a reservation of the further points to be
determined, and a clause of registration. It was also duly tested,
and copies were sent to the parties ; but the original remained in
possession of the clerk.
Gray and Woodrop then gave in a condescendence of their
claims; but shortly thereafter, and before this condescendence was
answered, the arbiters, without having altered or recalled either
of the interim decrees, subscribed a minute finding the par-
ties liable in the account incurred by the clerk, and declaring
' the submission terminated, without, however, stating that tbey
COURT OP SESSION. 787
had differed in opinion, or setting forth any ground for their
so terminating it. It appeared that, previously to this. Gray and
Woodrop had made a demand that the clerk should put the interim
decrees on record, which demand the clerk submitted to the arbi-
ters in a memorial, but the arbiters, in the minute above men-,
tioned, ' declined to give any deliverance thereon/ On this the
clerk brought a multiplepoinding, to have it determined which
of the two parties was entitled to the possession of the original
interim decrees, and thereafter M'Nair brought a reduction to
have them set aside, on the grounds, 1. That the arbiters had not
exhausted the submission ; and, 2. That the decrees had not beeri
delivered.
These processes having been conjoined, the Lord Ordinary ap-
pointed Cases to the Court, in which it was contended for M'Nair,
1. That the recording or delivering a decreet-arbitral was es-
sential to its validity, for, so long as it was undelivered, the arbi-
ters might recall or alter it ; and their not delivering the decrees,
and their virtual refusal to do so in the present case* was equiva-
lent to a recall, or at least showed that they differed in opinion
with regard to these decrees, while the submission required that
they should concur to make them effectual ; and it was offered to
be proved by examination of the clerk and arbiters, that, after
the decrees were pronounced, one of the arbiters had altered his
opinion, and was satisfied that the judgments were erroneous, and
had on that ground refused to concur in the delivery ; and,
2. That the decrees were null in respect of the arbiters not hav-
ing exhausted the matters submitted ; for although they were en-
titled to give interim decrees, these must still be held subject to
the ordinary, rule, that they were not to be ultimately binding,
Unless the arbiters should give a final decision on all the points
submitted, which they bad illegally refused to do in the present
case.
On the other hand, it was pleaded,
1. That the recording or delivery of the principal decree is not
essential to its validity, if it appear that it is the joint decision of
the arbiters ; — that this was sufficiently established in the present
case by the decrees, which were never recalled, and that it was
incompetent to prove any alleged change of opinion by parole
evidence ; and further, that the sending of copies of the decrees
to the parties was in truth an issuing of them, and was so held
by the arbiters, who, in the narrative of the second decree, state
that the former one had been ' pronounced and issued? by them ;
and,
2. That the application of the rule contended for by the pursuer*
738 CASES DECIDED IN THE
was completely excluded by the terms of the submission, which
had contemplated the case of its expiring by the arbiters differing
cm particular points, and the necessary consequence of the whole
matters submitted not being decided, the arbiters having no power
to appoint an oversman, and had accordingly stipulated that they
might pronounce interim or partial decrees, and that, though they
differed on particular points, the submission should subsist as to
those on which they were agreed.
* The Court, by a majority, found ' it unnecessary to reduce
4 the said interim decrees, the same never having been complete or
* valid decrees-arbitral ; but, in terms of the declaratory conclu-
* sions, found the some to be null and void, and declared the sub-
* mission terminated, and the parties released therefrom,' and
found it unnecessary to pronounce any judgment in the process
of multiplepoinding and a relative advocation.
Lord Pitmilly. — It is necessary to consider together both of the ob-
jections taken to these decrees-arbitral by the pursuer, as the second
aids the first very much. As to the fint, if both the arbiters fcsd
concurred in wishing to recall the decrees, I have no doubt but that
they might have done so to the very last. The case of Robertson
' v, Ramsay is an authority in point ; and the opinion of Lord Bra-
field, lately published by Mr. Brown, is entitled to great weight; sod
when, on a point of pure Scotch law, we find such authority, I sn
not inclined to go further ; nor is the case of Simpson a oootrsy
authority, as the arbiter there was functus. If, then, it was compe-
tent for both to recall the decrees, I do not think it alters the natter
that one only refuses to deliver them. The second objection confirm
the first, as the arbiters declare the submission at an end, because
they differ on the points decided in the decrees already pronounced,
of which I think there is sufficient evidence. If they did not exhsast
the whole matter referred to them, the submission flew off; sad 1
therefore think that both objections are well .founded.
Lord Allowat. — I take a different view of this question. So ftrss
we are to proceed on authority, there ia none exactly, applicable to
this case. In the case of Simpson there was a positive decree can-
celling the former one* There is nothing of that kind here, sad I
hold the decrees in this case to have been regularly issued, the clerk
having sent copies to both parties, and the arbiters themselves stat-
ing in the second decree that the first was issued. It seems to be
conceived that the arbiters could not give a decree till they had set-
tled the whole matters in dispute ; but it was provided by the sub-
mission that they might give interim decrees, and that, if they after-
wards differed, they might give up. I cannot hold that they differed
on the subject of these two decrees, as we cannot resort to the exa-
mination of the arbiters to explain their decree, or receive meir evi-
dence.
i
COURT OF SESSION. 789
Lord Justice-Clerk.— I concur with Lord Pitmilly. We have here
by the clerk, asking leave of the arbiter* to record the
This they refuse, and I cannot hold them delivered by
copies being sent to the parties. The word ' issued,' used by the
arbiters in the second decree, is employed in the same sense as ws
talk of issuing notes, merely communicating them to the parties, hut
not delivering them as valid decrees. To constitute delivery, ft must
be the principal, and not a copy, which is delivered ; and I conceive
that the case of Robertson, and the opinion of Lord JBraxfield, di-
rectly apply. As to the other objection, I have also great difficulty.
It does not appear to me to be a case where the clause in the sub-
mission applies ; but the first is sufficient to4ecide the case.
Lord Glbnxeb. — I am of the same opiniqs>
Pursuer's Authorities.— Robertoon, June SO. 1^83, (653,) and Lord Braxfield's
Opinion in it, (2. Hailet, 912) ; Mortonhatt v. Roes, (in Papers of Simpson,
Dec. JO. 1736, 17007) ; Carse, A. S. Dec, 17. 1783, Aff. in H. of L.
Defenders' Authorities. -~4. Ersk. 333-39$ Lord Lovat, June 22. 1738, (625);
Glover v. Glover, I802t Aff. 1805, (no* rep.) ; Robertson, June 20. 1783, (653) ;
Simpson, Dec. 10. 1736, (17007) ; Wsrdrop, Feb. 4. 1794, (628.)
Gibson-Craigs and Wardlaw, W. S. — G. Dun lop, W. & — Agents.
Gibb and McDonald, Pursuers.— Jeffrey. No. 348.
Sir Paul Baghott and Others, Defenders. — Sol.-Gen. Hope—
S\cene — Whxgham.
Process.— A summons having been raised ostthe allegation that the pursuers had
been induced by the defender to enter into a contract by fraud, and that he had
committed a fraud in implementing it, and concluding for repetition of money
advanced on the faith of due implement, and for damages — Held not necessary
to set aside the contract by a reduction, before insisting in these conclusions.
Gibb and M'Donald, shawkmanufacturers in Edinburgh, June 1. 1827.
brought an action against Sir Paul Baghott, and Paul Wathen ]«• Diftsio*.
and Company, of which they alleged he was the sole partner, Lord Meadow-
setting forth in the summons that Sir Paul having fraudulently & '
represented to them that he had the means of importing Cash*
mere wool directly from Cashmere, and had discovered the mode
of spinning the wool into yarn, which had been hitherto unsuccess?
fully attempted, and that he would secure to them an exclusive
supply of such yarns, they had been induced to enter into an
agreement with him, * whereby the said Sir Paul Baghott, and
' Paul Wathen and Company on the one hand, agreed to supply
' the .pursuers with the whole yarn to be spun by them as afore*
* said, and the pursuers, on the other hand, agreed to purchase the
' same, and to pay therefor certain high prices specified in the
740 CASES DECIDED IN THE
c missives interchanged between the parties, and varying in
( amount according to the fineness of the yams furnished, which
c prices, it was agreed, should be reduced so soon as, by the com-
€ pletion of the new and improved machinery, which was said to
* be in progress, the said Paul Wathen and Company should be
K enabled to spin yarn *in greater quantity, and of better quality.1
They then proceeded to state, that on the faith of this contract
they had laid out large sums of money, and had received quantities
of yarns, for which they hpd paid the stipulated prices, but that
they had discovered that the whole had been a fraudulent mis-
representation, and ' that instead of importing the Cashmere wool
' directly from Cashmere, and spinning the same in England, is
* pretended by the said Sir Paul Baghott, the alleged first and
* true inventor thereof, the yarns forwarded to the pursuers, as
* having been spun in England, were purchased by. the said Sir
' Paul Baghott, or Paul • Wathen and Company, in France, or
( elsewhere on the Continent, where the art of spinning Cashmere
( wool had been discovered, and where the yarns may be pur-
« chased in open market/ They further stated, ( that in conse-
c quence of the false and fraudulent representations of the said
* Sir Paul Baghott, or Paul Wathen and Company, and of the
' deceptions practised by him or theta upon the pursuers, where-
' by the latter were induced to enter into anil continue the eon*
* tract before mentioned, the said contract is, in law and equity,
* null and void ab initio ; and the pursuers are not only entitled
* to repetition from the said Sir Paul Baghott, or Paul Wathen
' and Company, of the foresaid sum of <£600 paid to them above
* the fair market price of the foresaid yarns, but are also entitled
* to indemnification and reparation for the loss and damage which
' they have sustained, or may sustain, in consequence of having
* been led to embark in a new and -extensive manufacture by the
* false and fraudulent representations aforesaid/ The conclusions
of the action were, that * therefore the said Paul Wathen and
c Company, an£ Sir Paul Baghott, ought and should be decerned
' and ordained, by decree of the Lords of our Council and Sea-
4 sion, conjunctly and severally, to make payment to the pursuers ,
* of the foresaid sum of £600 sterling, or such other sum, more
* or less, as shall be ascertained, in the course of the process to
' follow hereon, to be the excess of the sums paid by the pursuers
« to the said Paul Wathen and Company, or Sir Paul Baghott,
* above the market price of the Cashmere yarns received by the
c pursuers in manner before mentioned : And further, the slid
4 Paul Wathen and Company, and Sir Paul Baghott, ought and
' should be decerned and ordained, by decree foresaid, conjunctly
. COUBT OF SESSION. 741
' and severally, to make payment to the pursuers of the sum of
' £5000 sterling in name of loss and damages sustained by them.'
In defence, the allegations in the summons were denied, and it
was pleaded, That as the contract was one of a current nature, and
was declared that it should not come to an end till three months
notice was given, and as the' conclusions of the summons rested
upon allegations that it had been entered into by means of fraud
and deception, the^cjion was .irregular, as ther^was no conclusion
for having it reduced and set aside* . . r .,. : ..: . j
To this it was answered, That the ctonckfsfons of the action
rested Upon the allegation that a fraud had been committed in
implementing the contract, by delivering a species of article dif-
ferent from that which was there stipulated, and therefore; there
was no necessity for setting aside the contract, which might be
brought to an end by giving three months notice, and to which
the present action was equivalent.
The Lord Ordinary repelled the defence, and the Court ad-
hered.
Lord Balgray. — The chief difficulty arises from the statement in the
summons, that the contract is null and void. It is plain, however,
from the* conclusions, and from the allegations in general, that the
object is not to set aside the contract, but to obtain indemnification
for non-implement*
Lord Gillies* — The question which is raised here is, whether the
pursuers can plead fraud by exception ? But the action is not rested
so much on the contract being entered into by means of fraud, as by
a fraud being committed under the contract. Where a ground of
action is excluded by the existence of a deed, it is necessary to set
aside that deed in order to maintain the action. So, in the Queens-
berry cases, it was necessary to reduce the leases, because, till they
were set aside, tbey afforded a good title of possession, and conse-
quently an effectual defence. If, therefore, the defenders could
found on this contract as a defence against the claim now made, then
it would be necessary for the pursuers to set it aside. But that is
not the nature of this action. It is no doubt true, that there is
some difficulty arising from the allegation in the summons that the
contract is null and void ; but I do not think that it is sufficient to
prevent the pursuers from insisting in the conclusions of this action.
Lord- Craigie. — I could never see any difficulty in this case at all.
The substance of the summons is, that the defenders undertook to
do what they were unable to perform, and therefore the pursuers
seekfor damages.
Lord President. — I am of the same opinion. The action is truly
for non-implement ; and the allegation of fraud is directed to that
point,-— the statement being, that the defenders agreed to furnish
vol.. v. 3 B
74* CASES DECIDED IN THE
Cashmere wool from Cashmere, where— thai which was deliver*)
was not so.
Ritchie and Miller, 8. S. C^-T. Bruce, W. S.— Agents.
■
No. 349- Mrs. Sloan, Pursuer.— Cuninghamt—Maitland.
J. Birtwhistle, Defender. — Sol.-Gcn. Hope— Graham Bell.
manual Pre$criptioH--Stamp.<^Ht\di---l.--That the production, in an actios, by
a defender, of an account for goods famished within three years from ill date, at
a counter claim against the pursuer, interrupted prescription ; -and, -ft.— That
written acknowledgments for money advanced by a party not a banker, bat who
was truly making the advances in that character, did not require to be stamped.
June 1. 1637. . The late Alexander Birtwhistle, manufacturer, and Mrs. Sloan,
1st Division, innkeeper at Gateside, carried on a variety of transactions together,
Lords Alioway —he . furnishing her with corn, beef, *nd other articles, while she
and Eidin. advanced to him money to pay bia tradesmen, hired chaises to him,
and allowed his tavern bills to remain unpaid ; so that, at the period
of his death in 1810, their accounts were in considerable coafo.
sion. She then brought an action of count and reckoning against
the defender, bia heir, embracing a great number of claims, in
defence against which he founded on counter claws, and denied
the existence of several of the claims made by the pursuer. In
the course of the discussion two questions arose; first, whether an
account for beef, alleged by the defender to have been finished
to the pursuer, was prescribed; and, second, whether certain
unstamped acknowledgments by the late Mr. Birlwliiade for
money advanced to him by the purtuer were probative. In re-
gard to the beef account, the facts stood thus :— It amounted to
£610— terminated on the 19th of December 1608,— was regu-
larly entered in Mr. Birtwhistle's books— and the pursuer admit-
ted that it had been contracted to the extent of JP40O; but she
qualified her admission with the statement that she had paid £316.
The action was raised in October 1810, and defences were lodged
in February 1811 ; but the account was not produced with them.
On the 5th of March 1811 a diligence was granted for recovering
all books, accounts, &c, under which Mr, Birtwhistle's ledger,
containing the account, was produced on the 11th of May, and
it was lodged in process before the 18th of June. A copy of this
account was also lodged in process ; but it did not appear at what
precise time this had been done.
The facts relative to the unstamped documents were these :—
Mr. Birtwhistle was engaged in extensive manufactories at Gate-
side and other places ; and there, being no banker nearer than
Kirkcudbright, the pursuer was in the practice of accommodating
COURT OP SESSION. 74»
him with money to pay his workmen, for which he gave her ac-
knowledgments on unstamped sfips of paper.
On the part of the pursuer it was objected that the beef account
was prescribed ; and on that of the defender that the unstamped
documents could bear no faith. Lord Alloway found, ' with re-
* gard to what is called the beef account, that as the triennial pre-
* scription has run, the pursuer's admission of a certain part of it
' being due must be taken along with the qualification accompany-
* ing it ; and therefore, if the defender shall insist that move is
* due than what the pursuer has acknowledged on this account,
* it must be proved by the pursuer's writ or oath ; and that the
* objection as to the stamps is not well grounded, the transactions
* vouched by the documents bang mere cash transactions in the
* coarse rf carrying on the business of the parties; and although
« the pursuer was not a banker, yet, in advancing cash to Mr.
* Birtwbistfe, she stood in that situation, she being an innkeeper,
' getting ready cash, and there being no bank nearer than Kirk*
4 eudbright, which is fifteen miles distant,9 and therefore repelled
the objection ; and to this interlocutor Lord Eldin adhered.
The defender having reclaimed, the Court, after appointing
< the parties to lodge mutual minutes, stating specifically what
< • they allege as to the date of lodging in process the beef account**
found that * the beef account was produced in process within
* such period as to exclude the plea of prescription, and that the
* same is instructed by the admissions of the pursuer, and by the
* books of the late Mr. Birtwhistle; and therefore altered the
4 finding of the Lord Ordinary as to that account in the interlo*
4 cuter,' but adhered on the other point, and remitted to him to
proceed accordingly on these and the other parts of the cause.
His Lordship having thereafter, on the report of an accountant,
decerned for a certain sum against the defender, and he having
reclaimed, the Court in part adhered, and in part altered.
Pursuer1 1 Authoring.— (1,)— 3. Erak. 4. 19; Tait on Evidence, 467; Ferrier,
July 9. 1811, (F. C.)
D. TviurvtTLL, W. S<— D. and R. Blmui, W. S— Agrarta.
3bS
744 CASES DECIDED IN THE
No, 350. A. Anderson, Pursuer. — More.
R. Rintoul and Others, Defenders.—/). qTf. Moncret^—
Fullerton.
Proof— Qualified Admission.— Held that a qualified admission rafist be taken as it
stands, as a piece of evidence along with the rest of the proof; but that it if com-
petent to redargue by contrary evidence the qualification adjected.
June 1. 1827. The late Robert Rintoul, by his deed of settlement, executed
2d Division *n ^1016' left to Mrs. Anderson, the only daughter of his first mar-
Ld. Cringletie. riage, and the wife of the pursuer, £50 in full of all claims conn-
M'K. petent to her in consequence of his death. This sum oot being
considered equal to the legitim, her husband, the pursuer, raised
an action against the defenders (who were children of Rintoul by
a second marriage) for payment of his wife's share of legitim.
In defence against this action it Was pleaded, That Anderson
had, in the lifetime of Rintoul J received two sums of £ 100 each,
as part of his wife's share,- and that he was boutid to collate these
sums.
- Anderson, in a condescendence signed by himself, admitted
the receipt of these sums, but under the qualification that they
bad been paid to account of what was due to Mrs. Anderson as
executrix of her mother, RintouPs first wife', out of the goods
in communion at the period of her death. The defenders then
craved a proof to show1 that the sums advanced to Anderson were
not payments to account of his wife's claim for her mother's
executry; but the Lord Ordinary refused this, and repelled
the defences, ' in respect there is no evidence tof -£5800 having
c been paid to the pursuer but his own admission, qualified by
< 'an explanation that the money was paid to him on' a different
* account.**
The Court, however, (see ante, Vol. III. No. 846*) recalled
this interlocutor, and remitted to the Lord Ordinary to receive
from the defenders a condescendence of what they averred and
offered to prove.
A condescendence was acroffdmgly 'given in, wJricb was follow.
ed by answers for Anderson ; and from these, and the documents
produced, the following circumstances appeared : —
Prior to the year 1772, old Rintoul had been a chapman or
pedlar, but in that year he settled at Kincardine as a petty shop-
keeper; In 1778 he married his first wife, (Mrs. Anderson's
mother,) who died on the 28d of September 1778 ; and on the £7th
of December thereafter a meeting of his creditors was held, at
which he offered ' to make a surrender of his whole debts and
COURT OF SESSION. 746
€ effects in favour of his creditors, or to pay a composition of five
' shillings in the pound.1 The composition was accepted on his
debts, -which amounted to £158 : 16 : 3, — his goods, and the debts
due to him, amounting at the same period to only £38 : 7 : 10£.
In 1778 Rintoul contracted a second marriage, and he died in
1822, leaving some property to be disposed of according to the
provisions of his deed of settlement. It further appeared, that at
the end of the ledger kept by Rintoul, in which he inserted his
dealings with his ordinary customers, there was a leaf which con-
tained entries of private transactions in his own hand ; and among
these were the two following : —
* 1801, .Dec. 1. — Cash given Andrew Anderson in part of his
« wife's patrimony, - - - flOO 0 0
* 1806, May 21. — To cash given Andrew Anderson
• in full of his wife's patrimony, - - .£100 0 0'
This last payment was also entered in Rintoul's bankbook,
4 1806, May 21. By order to Andrew Anderson, jPIOO ;' and it
appeared from a certificate of the bank agent, that on that day
an order to this amount had been paid by the bank.
Anderson did not allege that there had ever been any settle-
ment or discharge of his wife's claim as her mother's executrix,
and in these circumstances the defenders contended,
1. That there was sufficient evidence, independently of Ander-
son's admission, that £ 200 was paid to him during old Rintoul's
lifetime, and that it fell on him, therefore, to show in the present
action that there was a claim on the part of his wife to that
amount, in extinction of which it might be applied ; and,
2. That even supposing the admission to be the only evidence,
the defenders were entitled to disprove the qualification attached
to it, and had actually done so by the evidence produced, which
led necessarily to the conclusion that old Rintoul was insolvent
at the date of his first wife's death.
The Lord Ordinary reported the case, intimating his opinion in
a note, that the entries in old Rintoul's books afforded no evi-
dence of the payment, and that the admission by Anderson being
the sole evidence of that payment, must either be taken in whole,
or. rejected in whole; but the Court unanimously sustained the
defences, reserving to Anderson to establish any further claim.
Lord Glenlee. — It appears to me that, to a certain extent at least,
the doctrine on which Anderson founds does not apply; for, suppos-
ing this were an ordinary action for recovery of the second £100,
how would the matter stand ? We have aa entry in the book by
Rintoul that he gave Anderson £100 ; we have also an order entered
in his bank book, aad the evidence of the banker that that order
746 CASES DECIDED IN THE
was paid. This is sufficient evidence of payment without my s*V
suasion at all; to that, as to this £100, the pfe* that the qualiflcatiso
must be received does not apply. But betides, as to the general
doctrine, this is very different from an oath on reference ; the ad-
mission is merely a piece of evidence, and I am not even satisfied
that the qualification is truly an intrinsic quality* If a qualification
be as to something contracted at the constitution of the debt, though
it result into a claim of compensation, yet if it entered into the ori-
ginal constitution of the debt, it will be an intrinsic qualification;
but when the claim with which the admission is qualified does not
arise at the moment of constitution, it will he extrinsic Besides,
Anderson does not say that there was any settlement of accounts,
or any discharge, so that the matter is still open to an accounting,
and old Rintoul's representatives are stiH entitled to say to him, you
must enter into a count and reckoning, and if yoa have been over-
paid, you must repay. If Andersen can show that hie wife's ebon
for her mother's executry amounted to that earn, ha wiH gal csT,
otherwise he must collate before he can demand the legirfm*
Lord Pitmiixy^— I entirely concur* There is a great oUflereaeo be-
tween this and an oath on reference, and the rule laid down by
Phillips (p. HI) clearly applies. We must take the admission as
it stands, but along with the rest of the evidence* I cannot agree
with the Lord Ordinary that there is no proof of the payment except
the admission. Old Rintoul's book is admissible, and it is import-
ant evidence, and altogether there is proof of payment independent
of the admission. Then, if that be the case, it just comes to the
question, Whether the £200 was in payment of the mother's exe-
cutry, or of Mrs. Anderson's patrimony? And there cannot be
stronger proof that there was no executry, than that, three months
after his wife's death, Rintoul was insolvent, and only able to pay
five shillings in the pound.
Lord Alloway. — Even if it had depended on the question whether
the qualification was extrinsic or intrinsic, I would have held that it
waa extrinsic But there is reaOy no difficulty whatever when H »
considered that there was no settled account, and that the qualifica-
tion ia completely disproved, as it is clear that there could have bees
no executry.
LomD Justicb-Clxbx. — I have nothing jto add. The qi
on the whole evidence, which is altogether in fervour of the
unless the pursuer can instruct more satisfactorily than he
done, that this £200 was paid on another account.
MACWTCHIM, BAXJ.BY, M*& HSPDEUOM, W. &~-Tf>» W»lt IfeMAKHt
. W.S.— Atfurt*
COURT OP SESSION. 747
J. Geddes, Pursuer. — Forsyth. N0# 351.
J, Hopkirx, Defender.— Cuninghame — Hopkirk.
oee*i^Partiurship+—Ke\& that irhere a debt |s not constituted against a com-
pany, all the partners must be called in an action for constituting it against the
partners.
In 1785 a company was formed at Glasgow, consisting of ten June 3. 1837.
partners, under the firm of the Glasgow Bottlework Company, of i„ DmsTo*.
wbwh Geddes w*s appointed manager, and of which he ftjkged Lord Meadow,
that he was a partner. In the course of the foifawiag year a b^k*
new company was formed under the firm of the Glasgow Glass-
work Company, consisting chiefly of the same partners as those
in the Bottlework Company ; but it was alleged that there were
also new partners. By one of the articles of the contract of the
Glasswork Company, they bound themselves to implement and
fulfil all the contracts of the Bottlework Company. Of this new
company Geddes was alsri appointed manager, and had a small
share as a partner. The concern was dissolved in 179* ; and soon
thereafter he brought an action against the company, concluding
for certain alleged arrears of salary. This was met by a counter
action, and a long litigation ensued. In the course of it, Geddes
having claimed a certain sum as being due to him by the Bottle-
work Company as a partner, it was objected that he was bound
to proceed against that company. He accordingly raised an ac-
tion, in which he concluded that ' the said Glasgow Bottlework
* Company, and the said James Hopkirk, as cashier and sole sur-
• viving partner of said company, as representing the same, and
4 also as an individual,' ought and should be' ordained to hold
count and reckoning with him for his share of the profits.
In defence it was pleaded by Mr. Hopkirk, That the action
could not be maintained against him as a partner of the company
individually, till the claim was constituted against the company
and the other individual partners, and therefore Geddes was bound
to have called the whole other partners, or their representatives,
according to the general rule, that all4 having interest must be
brought into the field ; and that as Geddes alleged that he him-
self was a partner, he must have known who his copartners were.
To this it was answered by Geddes, That he had called the
company itself and Mr. Hopkirk, who was the surviving partner
and cashier ; and it had been decided in Scotland that it was suffi-
cient to call the company itself,-^and in England, that in action
lay by a creditor of a company against any one partner, without
calling the others.
748 CASES DECIDED IN THE
The Court, on the report of the Lord Ordinary, ' sustained the
* preliminary defence, and sisted process till the first sederunt
c day in November next, so that all the parties may-then be
* called/ and found Geddes liable in expenses.
The Judges held, that as the debt sued for was not constituted against
the company, it was necessary to call all the partners ; and that as
Mr. Geddes alleged he was a partner, he could have no difficulty in
knowing who his copartners were.
Pursuer's Authorities.— 2. Bell, 619; Reid and M'Call, June U. 1814, (F.C.);
M'Tavish, Feb. 3. 1821, (F. C); Kesley v. Codd, Dee. 83. 1836; Maodsley
v. Le Blanc* Jan. 11. 1827*
Defender's Jut1urrities.—&tjur9 792; 4. Ersk. 1. ,66; A. «. B. Feb. 26. 1741,
(14560); Stevenson and Company, Feb. 14. 1757, (14667); Johnston, Jan. 20.
1824, (ante, Tol. III. No. 598.)
T. Spin, W. S.— J. G, Hopkirk, W. S.— Agents.
No. 352. Rev. Di\ Davidson, Petitioner. — Bropm.
»
T. Falcone*, Respondent. — D. qfF. Moncrejffir^aauybnL .
Pr9oes*—Judicoi*re Aot-~S*U. «. Geo. IV. *. 12Q.*~A party having taooatat for-
ward a new plea after the record was closed, allowed to. add it, but thai only on
payment of the whole previous expenses.
June 2. 1827. Da. Davidson .having presented a petition under the Bank-
1st Division. ruPt Act, praying tp have Falconer, trustee on the sequestrated
Lord Newton, estates of his tenant Weir, ordained to make payment to him of
D- a certain sum, for which he alleged he had a preference as land-
lord, and w^icb he also alleged had been recognised by a trans-
action with a former, trustee, and the case having been remitted to
Lord Medwyn to prepare it, a record was, made up and closed,
jmd a judgment, propounded by his Lordship decerning against
Falconer., T,he Court, however, recalled that interlocutor, and
remitted tp Lord Newton, before pronouncing judgment, to make
qertaui inquiries, (see ante, Vol V. No. 83,) His Lordship ac-
cordingly did so, and decerned against falconer for a certain ba-
lance, on the ground that Dr. Davidson wqs a, preferable creditor
in virtue of his hypothec. . Falconer again reclaimed, and for the
first time pleaded, that as the, r^nt was due for a Urne-quarry, Dr.
Davidson was not entitled to a preference..
Tp this plea it was objected, That as it was altogether new, it
could not be listened to; and at all events the Cqurt could not
permit it tp be. added to the record, without finding FaJtaoner
liable, in the whole previous expenses.
The Court, on condition of payment of tfye previous expeari,
allowed the plea to be added to the record. .
Scott,. Finlay, and Baldebston, W. &•— J. B. Watt>— 4gcats» >
COURT OF SESSION. 749
A. Hope and Others, Complainers. — Scl.-Gen. Hope — Sandfbrd. No. 353.
Magistrates of Selkirk and Others, Respondents. —
2). ofF. Moncreiff—Monteath.
Royal Burgh*— In a disputed election of the Deacon and Colleague of an Incorpo-
ration of a Royal Burgh, — Held that the votes of persons regularly qualified to be
admitted freemen, and only for the first time. admitted on the day of election,
were not objectionable on the ground of temporary non-residence in the interval
between the expiry of their apprenticeship and the date of admission.
Ik a complaint against the election of the Deacon and Col- Junes. 1827.
league of the Hammermen of Selkirk at Michaelmas 1825, ob- 2d Divkiok.
jections were, inter alia, taken to the votes of certain indivi- M'K.
duals on both sides, on the ground of non-residence, as to which
thore was no provision in the set ; but in the seal of cause there
was a declaration, that every freeman who should not reside
should pay a certain sum quarterly. These' persons, who were
all masons or wrights, were either the sons of freemen, or had
served the necessary apprenticeship in Selkirk, and had there-
after been in the habit of spending part of the year, generally the
greater part of it, in Edinburgh, or other parts of the country,
where wages were higher, and returning, for periods longer or
shorter, according to circumstances, to Selkirk, where they resided
with their parents or families, being in some instances married,
and having houses in Selkirk ; but two of these, who were unmar-
ried, had left Selkirk on the expiry of their apprenticeship, and
had resided constantly in Edrnborgh- for three or fotir years,— one
of them, however, being in use' to send Mfr clothes to his* friends
in Selkirk to be washed. All thfe individuals whosfe votes were
objected to on this ground had only 'claimed to be admitted free-
men, for the first time, on the day when th£ disputed election
took place ; oft which occasion they had come to Selkirk, and
several of them left it immediately after the" election, particularly
the two last mentioned.
In these circumstances, it was pleaded on the one side, That
residence was absolutely necessary to enable a freeman to exercise
his privilege as a member of an incorporation ; and reference was
made to an unreported case of Dobson v. Inglis in 1803, as estab-
lishing that the same rule applied to persons claiming for the
first time to be admitted frednen, as to those who had been pre-
viously admitted ; — while, on the other hand, it was contended,
That this only applied to persons already admitted* freemen; but
that, in regard to claimants- for admission, residence was not a re-
quisite qualification, and* that, bring otherwise qualified, parties
7W CASES DECIDED IN THE
were entitled, on admission, to exercise their privilege, although,
by subsequent non-residence, after becoming freemen, they might
be precluded from doing so. And it was further maintained, that
the circumstance of persons working as journeymen for a year or
two in a different part of the country, where they might better per-
fect themselves in their trade, was not such a permanent change of
residence as to disqualify them from voting when admitted freemen
The Court repelled ' the objection of non-residence, as alleged,
' to the admission and votes' of (he persons above mentioned.
Loan Gleni&b. — I understand that the only question balm m at
present is in regard to the objection of non-residence, and I am in-
clined to sustain the plea, that it is npt a good objection in regard to
persons just admitted, There migbt have been a, difficulty, if the
seal of cause had expressly required constant residence by freemen;
hut, on the contrary, I see that it contemplates non-residence, as it
stipulates a certain payment by non-resident freemen, and conse-
quently assumes tbat there may be such. At the same time there
no doubt may be such a total abandonment of the burgh at might
be sufficient to prevent a party from benefiting by this plea; but I
cannot see that there is any such degree of non-residence conde-
scended on upon either side as to disqualify the persona objected te
from admission, and indeed none but what might be expected, eat-
tidering the size of the burgh and the trade of these iadWdaala.
They may afterwards reside, and their previous non-rtsMence, then-
fore, is not a good objection to the act of autmissaoo.
Loap Pitmuav^-I entirely concur.
JUbd Ajxoway-^I feel great difficulty here; bat I an Wised*
agree with Lord Grlpale* as f» those <a*e* » whether* appear* *
have been a bona fide intention to reside. By statutes, hsetnr,
which have not been at all relaxed as to tradesmen, reaidescs ia it-
quired as, a qualification for tfre exercise of any privile^s; aasUan
not prepared to say that there is a genera] principle wbich nata
residence unnecessary in the case of applicants. If such persona cooe
one day, and go away the next, I doubt exceedingly whether tbej
are entitled to exercise the privilege of freemen.
JLorD JusTiCE-CLZRKr-s-Considerable difficulty certainly attend* inn
case, which involves an entirely new question ; for the cases of Lanw
and High were very different. There the parties wnose rotes were
objected to, had been Originally enrolled as niemhers of their incor-
porations, and had afterwards entirely left die burgh, and then at-
tended for the mere purpose of voting. T64 sock -cases as these, the
objection of non<*esidenee completely appMoa ; but the tjbeatfea k*
is, whether it applies to persons adaaftted fear ffco fest dsataiAe
dary o/eieotjfto, qualified in amy mhm wmfmc*, waivaimg*'*'
fiaat time teavaiJ shasBaeleas ef the qnsKfinttsoa far atfaaawise ate*
COUBT OF SESSION. 751
noualy acquired? If the sal* be bid daw*, thftttbe waiting *]**<
where between the expiry of the appreatteeehip tad the adulation
is a freemen is aa objection to admission, it will ajaount to this, that
tradesmen must got only eerre an apprenticeship, but alee work aa
journeymen in the burgh, and without leaving it, in order to qualify
them for becoming freemen, A wrigbt or a tailor may naturally
wish to go to London to work aa a journeyman, in order to perfect
himself in his trade ; but when he returns, can he be met with the
objection that he is non-resident ? I can see no principle for it ; and
as to the case of Dobson, although the objection was stated, there
seems to have been no deliberate judgment on the general point, and
the person there had been absent 20 years, which gave his coming1
to rote greatly the appearance of jobbing. Then, if the parties here
were not barred from being admitted, I do not see how their rotea,
tendered on the very same day, should not be received.
Lobd Gl*nlbe— The finding of the Court should be confined to tha>
ease of non-residence, as here alleged / for it would not do to lay
down a rale to exclude the objection in all kinds of non-residence.
CompJaintrt' AHlhoriHei. — mghATi&itte. 1789,(1893); Lamb, July 20. 1789,
(1889) ; Dobson ». Inglia, 1803, (not rep.)
Respondents' Juthoriti*§<— Anderson *. Wick, Fab, 17* 1749, (108) ; Dunbar, Jan.
7. 1757, (1865) ; Andrew, Jan. 34. 1775, (1883); Tennant, Fab. S3. 1785, (3720.)
J. Young, S. S. G — W. Lang, W. S— Agents.
R. Davis***, P*Tmm.~43ockbum~Makknemt. No. 354.
Mrs. Robertson, Defender. — Jeffrey — Penney.
Jfpeak ' ihuse of Uti% v Jmt9di§Momj-4UM. incompetent to entertain aa
tipn to the validity of . a judgment of the House of Lords, tnat although it bore
that the party had appeared and been heard, yet in point of fact he was dead.
In 1809, John Robertson, (the husband of the defender,) Wil~ June 5. 1827.
Ham Carlier, and Mason, Baird, and Company, entered into a 1st Division.
joint adventure relative to a shipment of woollen cloths to Quebec, Lord Medwyn.
Theae clothe were purchased from George Lockwood and Cora* 8.
pany by Mason, Baird, and Company, on account of the joint
concern, at the price of ^£1492 : 14 : 9. On the tStd of January
1810, Mason, Baird, and Company, who were the agents of
Lockwood and Company, drew a Mil, bearing to be for value in
woollen cloth* to Quebec, upon John Bobertaon and Company,
(the firm said to have been assumed by the joint adventurers,)
and which was accepted under that firm by Robertson. The biH
was then indorsed in full to Lockwood and Company by Maeon,
Baird, and Company, who again indorsed it ' per procuration,
1 George Locfrwaad and Company,' to Andrew Dayidsou, who
758 CASES DECIDED IN THE
thereupon indorsed it to Robert Davidson. Thereafter* on 12th Fe-
bruary 1810, another bill was drawn for precisely the same sum,
and bearing to be for the same value, by Mason, Baird, and Com-
pany, and which was accepted under the firm of John Robertson
and Company. This bill, it was alleged, was drawn by Baird as a
partner of Mason, Baird, and Company, and also accepted by him
under the firm of John Robertson and Company, as one of the
joint adventurers. He then indorsed it under the firm of Mason,
Baird, and Company, and sent it to Lockwood and Company.
When the first bill fell due, Davidson gave a charge on it
to Robertson, as a partner of John Robertson and Company,
—to Carlier in the same character, — and to Lockwood and Com*
pony as endorsers ; and soon thereafter Lockwood and Com-
pany charged Robertson on the second bill. Robertson then
brought a process of multiplepoinding, alleging that the bills had
been granted for the same debt; and at the same time both he,
Carlier, and Lockwood and. Company presented separate bills of
suspension of the charges given by Davidson. On the 29th No-
vember 1810, Lord Hermand found Robertson, as pursuer of
the multiplepoinding, liable only in once and- single payment, and
ordained the competing parties (who were Davidson and Lock-
wood and Company) to produce their respective claims and inte-
rests in order to a competition, and at the same time he suspended
the charge against Robertson in each case, ' ay and while the
* other bill be discharged;' and he also suspended the letters sim-
pliciter as against Carlier and Lockwood and Company. Against
this interlocutor Davidson represented on all the points; and
thereafter, on die 28th of November 1811, the Lord Ordinary coo-
joined the whole of the processes of suspension with the multiple-
poinding, and ordained Davidson to lodge a condescendence in
regard to his allegation of Mason, Baird, and Company having
authority to bind Lockwood and Company per procuration. Of
this interlocutor (which necessarily recognised the multiplepoind-
ing as a competent process) Davidson did not complain ; and, on
advising his condescendence with answers, the Lord Ordinary,
on the 13th of June 1811, pronounced an interlocutor, which, after
certain findings, proceeded in these terms : — ' Finds that Lock-
4 wood and Company, though in. use to employ Mason, Baird,
c and Company as commission agents in some of their sales, are
4 not to be presumed to have intrusted them to draw or indorse
' bills in their name; while there is this peculiarity in indorsations
' bearing to be per procuration, that if they can at all oonvey the
' extraordinary privileges of onerous indorsation, the. onus pro-
* bandi of the existence of such procuration lies upoa the iador-
' COURT OP SESSION. 768
( see : Finds do evidence of the existence of such procuration in
*. this case: Suspends the letters simpliciter in the different sus-
* pensions at the instafaee of Lock wood and Company, John Ro-
* bertson,' and William Carlier, of the charges at the instance
' of the representor, and decerns : With respect to- the other
€ bill, dated the 12th February 1810, fairly indorsed by Lock-
' wood and Company* and now standing in their person by re-
* indorsation, finds - the letters and charge at their instance
* orderly proceeded- as against the suspender. John Robertson, .
* and prefers them to the sum in medio of the multiplepoinding,
' and decerns* in the preference, and for payment accordingly : In
* the suspension at the instance of William Carlier, who denies
( that be has any concern with John Robertson and Company* or
? can be bound by the subscription of that firm, before answer,
* allows George Lockwoed and Company to give in a condescend-
* ence* in terms of the Aot of Sederunt, of the facts they will
* undertake to prove for showing that he is bound by 6uch sub-
i scription* if, in the circumstances of the case, they think it ne-
' cessary to enter into that discussion."
To this interlocutor the Court adhered on the 11th of Decem-
ber 1811, and 10th January 1812, and at the same time, found
Davidson liable in expenses.
. Davidson then entered an appeal against the whole of. the in-
terlocutors, and Robertson . then applied for interim execution,
and obtained payment of £111 < : 15 : 1 of expenses^ for Deputation
of- which he granted a. bond in .case *rf reversal. H* died on the
11th of April 1815 ; but no notice of this was given to Davidson ;
and counsel and agent appeared for him in. .the House of Lords,
where the cause was heard, on the 19th and 21st of April 1815-
Thereafter, on the 4th of July, the House of Lords. pronounced
a judgment, which, after narrating the hearing of counsel upon
the petaoon- of Davidson, and the answer of the several parties,
and also the answer of John Robertson, merchant in Aberdeen,
put in to 'the said appeal, and that due consideration bad been
had of what was offered on either side in this cause,' proceeded
in. these terms:— 'And it appearing to the Lords that the ap-
pellant has* not appealed from or reclaimed against. the inter-
locutor of the Lord Ordinary of the 29th November 1810, in
the process of multiplepoinding, finding the pursuer liable only
in once and single payment, or from the interlocutor of the Lord
Ordinary, of the 38th of February 1811, conjoining the pro-
cesses of suspension with the multiplepoinding ; and that the
appellant, on the contrary, in his reclaiming petition against the
interlocutor of the Lord Ordinary of the 18th June 1811, sub-
mitted, to the proceeding in the multiplepoinding, the Lords
W* CASES DECIDED IN THE
4 cannot proceed to determine whether the process of mukiple-
* poinding was well raised or not ; but, on the Mil of suspension
4 of William Cariier, it is ordered and adjudged by the Lords
< Spiritual and Temporal, in Parliament assembled, That the
4 several interlocutors complained of In the said appeal, bo far as
' they sustain the said bill of suspension of the said William Car-
4 lier, be, and the same are hereby reversed : And, with respect to
4 the bills of suspension of John Robertson, andof George Lock-
4 wood and Company, as conjoined with the process of multiple.
4 poinding, it is further ordered and adjudged, That the several
4 interlocutors complained of in the said appeal be, and the same
4 are hereby reversed ; and rt is ordered, That the cause be ie-
4 mitted back to the Court of Session in Scotland, to receive such
4 evidence as may be properly offered with respect to the two
4 bills of exchange in question ; and particularly to receive evi-
4 dence upon the facts stated in the appellant's condescendence,
♦and in the answer of the respondents George Lockwood and
* Company thereto, as to the nature of the dealing of the rsspond-
* ents George Lockwood and Company with Mason, Band, and
4 Company, and the authority which Mason, Baird, and Company
* had to indorse the biM of exchange of the 9SLA January 1810,
4 as by procuration for the respondents George Lockwood swd
4 Company, so as to make the said respondents liable to the pay-
*ment, as indorsers of the said biH; or in any manner to transfer
4 such bHl to Andrew Davidson, notwithstanding the indorsement
4 by Mason, Baird, and Company in fimmr of she respoodenis
4 George Lockwood and Company, either by striking out the said
4 indorsement in favour of the respondents George Lockwood and
4 Company, or otherwise, without making the said respondents
4 George Lockwood and Company liable as indomet* of the said
The case having then returned to the Court of Session, the
trustee on the estate of Mason, Baird, and Company, (who hod
become bankrupt,) raised a reduction of the title of Davidson to
the bill ; and having been successful, the Court of Session found
it unnecessary to proceed in the remit, and refused Davidson repe-
tition of expenses. He then entered another appeal to the H<
of Lords, when their Lordships, on the 15th of June 18M,
notmced this judgment :— c Find that the Court of Spseinn ought
4 to have applied the judgment of this House in the terms thew-
4 of; and as by that 'judgment the interlocutor of the 10th Jinii-
* ary 1812 was, with other interlocutors, reversed, the ^ppsJsmr,
* upon the cause being remitted to the Court of Seem
4 mg to the said judgment, wes entitled to a repetition of
« paid by him in pursuance of that interlocutor : It is
COURT OF SESSION. WS
4 ordered and adjudged, That the interlocutor* complained of in
i die present appeal be, and the same are hereby reversed: And
1 it is further ordered, That the cause be remitted back to the
' Court of Session in Scotland, to proceed therein according to
'the judgment of this House pronounced on the 4th of July
• 1816.'
. This judgment having been applied in terminis by the Court, and
the case remitted to the Lord Ordinary to proceed in it quoad ultra,
a motion was made by Davidson for repetition of the expenses
paid to Robertson* To this it was objected that Robertson was
dead, and that his representatives had not been called. Davidson
thereupon raised a summons of transference against the defender
Mrs. Robertson, as representing her husband, in which he obtained
decree of transference in statu quo on the 5fetd of January 18MF.
The motion for repetition was then made against her, but she
resisted it on the grounds,
1. That as the judgment of the House of Lords had been pro-
nounced at a time when her husband was dead, it was inept, and
consequently could receive no effect; and,
2. That as Robertson had no interest in the matter, except to
pay safely, and as he had been found liable only in once and
eingle payment, and the House of Lords had decided that they
could not touch that interlocutor, there had been no reversal so
far as his interest was concerned, and that the reversal had
merely taken place in the question of preference aa between David-
son and Lockwood and Company, and therefore there were no
termini habiles for repetition.
To this it was answered,
1. That the Court of Session had no jurisdiction to inquire
whether the judgment of the House of Lords was effectual or
not, on the ground of Robertson having been dead when it
was pronounced ; that if that was a valid objection, it could only
be given effect to by the House of Lords ; but that the Court of
Session could do nothing else than obey that which was ex facie
a good and formal judgment ; and, •
2. That Robertson was not only the raiser of the multiple-
poinding, but was also a suspender ; that this Court bad sus-
pended the letters simpliciter, and awarded expenses to him, but
the House of Lords had reversed that judgment, and conse-
quently the condition of the bond had come into existence, under
which Davidson was entitled to repetition of the expenses.
Tbe Lord Ordinary having reported the case on informations,
the Court appointed the following questions to be laid before
the other Judges for their opinions :—
766 CASES DECIDED IN THE
. ■ -« I. Whether it ia competent for this Court to entertain the ob-
' jection stated by the. defender Mre/ Robertson to the appHca-
« tion, as sought against her, of the judgment pronounced by the
* House of Lords, on the 4th of July 1815, in the appeal to which
c her husband, whom she represents, had been a party, — that her
* said husband was dead before the date of the hearing on which
c the said judgment proceeded,^— and that she was not at any time
* made a pajty.to the proceedings in the House of Lords?
' 2. Supposing this objection competent, and the averments on
' which it proceeds properly established* — what effect ought to be
« given to the objection V -
. On. advising the opinions of the, Judge*, together with the
informations, the Court repelled the objection* decerned far re-
petition* mA fau#d Mrs* Jtobertson liable ir* expense*
Lo^DS JuSTlCE-CMRK, GlE^L^, PuyifcfcT, ASM>WAY, CbIK-
tt gle^is, Mjppoinpj(9, M^k^nz/e* *nd , gUHN*. delivnied this
opinion :— ;We have considered the inf$pj#ions,,att4 faestiana. sub-
mitted to us by the Judges of the flrqt ^iviaioiMq, tfee case of R.
Davidson, late farmer at Leyton, against Mrs* Robertson; and, in
answer to the first question we are of opinion, Tb^t it is not com-
' petent for this Court to entertain the objection stated by the de-
fender Mrs. Robertson to the application, as sought against her, of
the judgment pronounced by the House of Lords on the 4th of July
1815. As that judgment stands, it cannot be determined by this
Court what effect is due to tbe objection stated by the defender,
that her husband waa actually dea^ before the date of tbe hearing
on which said judgment proceeded, and dpat she berasJf had not
been regularly made a party to the proceedings in the Home of
Lords, as we are very clearly of opinion, that it is the province of
the House of Lords alone to decide on all objections of that
The above being our opinion on tlje first question, it is
sary to notice the second query submitted to us. .
' Lord Medwyn delivered tbis opinion,: — No person. can doubt that
it is incompetent for this Court to inquire into tbe circumstances
under which a judgment of the House of Lords has been pronounced.
The duty of the Court whose judgment has been appealed from, is
implicitly to obey and apply the judgment. But the present case
does not present itself in this simple form. The petitioner David-
son does not come before us with a judgment of the House of Lords
in his hands, which he can ask of us immediately to apply ; for find-
ing that at the time the judgment was applied, on 25th June 1824,
one of the parties, John Robertson, was dead, and that his represent-
atives had not been called into Court, he has availed himself of the
form competent for such a situation, by bringing an action of trans-
ference againBt these representatives; and. in this process decree is
COURT OF SESSION. 767
pronounced on 22d January 1825, transferring the action, according
to the usual style, in statu quo, ' that the rait may proceed in the
. ' state it was in when the party against whom it depended died.' The
foundation of the petitioner's summons in this accessorial action is,
that Robertson died before the process was brought to a close ; and
this necessarily called forth the inquiry, when this event happened.
It appears that he died on 11th April 1815. In quo statu was the
original action at that time? It then stood on a decree of this Court,
appealed from. The process was no longer in this Court, but in
the House of Lords; and I do not see how we can proceed to
pronounce any judgment in a cause which, at the petitioner's in-
stance, has been transferred against the present parties, as on 11th
April 1815, at which period there was a decree of this Court ap-'
pealed from, but not reversed. '
If, after a party is dead, an interlocutor had been pronounced in
this Court in ignorance of tbat event, such interlocutor would be
null and void ; Shkr against Killiehuntly, 9th July 1765, in Supple-
ment to Dictionary, Vol. V. p. 911. Whether it be so or not in the
House of Lords, I do not pretend to inquire, as I am now clearly of
opinion that we have no power to institute any such inquiry. We
do all, I think, that we have it in our power to do, when, at the
petitioner's instance, we transfer the process against Robertson's re-
presentatives in statu quo ; for, as at the time of Robertson's death
it was in the House of Lords, without any judgment having been
pronounced, we can proceed no further, as we must not interfere
with any cause while in that House. . So that it appears to me the
House of Lords alone can proceed . further in the action in a ques-
tion with Robertson s representatives, and do justice between the
parties in the appeal.
Lord Balgray. — There were two processes brought by Robertson, —
first a multiplepoinding, and then a suspension. In the multiple-
poinding the usual interlocutor was pronounced, which the House
of Lords found they could not competently review ; but in the sus-
pension there was a separate and distinct judgment suspending the
letters siropliciter, which has been reversed. That being the case,
the expenses must be repaid.
The other Judges concurred with Lord Balgray.
Purauer't Atrthoritiet.- Hamilton, March 21. J 813, (F. C); Miller, May 31. 1881,
(antr, Vol. I. No. 46) ; Ballantine, Dec. 7. 1676, (346) ; Sidney's Treatise on Ap-
peals^ 32.
C. F. Davidson, W. S. — M orison and Burnett, W. S. — Agents.
vot. v. 8 c
768 CASES DECIDED IN THE
No, 355. J. M'Ghie, Pursuer.— Skene— W. BeJL
T. Leishman, Defender.—/), of F. Moncreiff—Green&ields.
Stume- Heritable Bmd+— Ciicumataacea under which various alleged irregulari-
ties committed in framing an heritable bond and sasine were repelled.
June 5. 1827. On the 15th of March 1810, John Currie, vintner in Hamilton,
— granted an heritable bond for JP750 to M'Ghie over certain sub-
Lords Medwyn jects situated in the parish of Hamilton and county of Lanark.
and Newton. Qn the 15th of April 1811 he granted another heritable bond over
S' the same subjects for «£300 to Leishman, on which sasine was
taken and recorded on the same day. M'Ghie did not take sasine
upon his bond till the 17th of June thereafter. In 1814 Currie was
required by M'Ghie to pay his bond ; and having failed to do
this, M'Ghie exposed them to public .roup in virtue of bis bond,
and purchased part of them at <£S90. A disposition was there-
after granted to him by Currie, on which he was infefit on the
1st of March 1816. Having taken possession, and an action of
mails and duties having been brought against him by Leishman,
M'Ghie brought a reduction of Leishman's bond and sasine. By
that bond, Currie, after acknowledging payment of the £300,
bound himself to repay that sum, * with £40 sterling of liquidate
' penalty in case of failure, and the due and ordinary annual rent
' at the rate of 5 per cent, of the said principal sum, from the
' date hereof to the said term of payment,' &c. He then bound
and obliged himself ' to infeft and seise the said Thomas Leiab-
* man and his foresaids, not only in all and whole an annual rent
' of £15 sterling, or such an annual rent, less or more, as, by the
' laws regulating annual rents for the time, shall effeir and cor-
' respond to the foresaid principal sum of £300 sterling yearly,
' to be uplifted and taken at the said two terms, beginning the
' first term's payment at the term of Whitsunday first for what
' annual rents will be then due, and the next term's payment at
c the term of Martinmas thereafter, and so forth at the said two
* terms in the year, during the not redemption, furth of all and
' hail,' &c. ; ' and that by two several infeftments and manners of
' holding, the one thereof to be holden of me and my heirs in free
' blench, for the payment of a penny Scots money upon the ground
* of the said subjects at the term of Whitsunday yearly ; and
'' the other of the said infeftments to be holden of me and my
c foresaids qf my immediate lawful superiors thereof, in so bet as
' concerns the said subjects, and that either by resignation or
ft confirmation, as best shall please the said Thomas Leishman and
c his foresaids, the occupation of one of the said infeftments bong
COURT OF SESSION. 7fi9
1 no ways prejudicial to the other ;— which infeftments, and either
4 of them, annual rent subjects, and others above written, out of
4 which the same is upliftable, I bind and oblige me and my fore-
' saids to warrant, acquit, and defend to the said Thomas Leish*
4 man and his foresaids, at all hands, and against all deadly, as
4 law will.' By the precept of sasine he appointed his procura-
tor to ' give and deliver heritable state and sasine, with real, ac-
4 tual, and corporal possession, to the said Thomas Leishman and
4 his foresaids, not only of all and haill the foresaid annual rent of
4 £15 sterling, or such an annual rent, less or more, as, by the
4 laws regulating annual rents for the time, does or shall effeir
4 and correspond to the foresaid principal sum of -£800 sterling
4 yearly, to be uplifted and taken at the foresaid two terms in the
4 year, Whitsunday and Martinmas thereafter, at said two terms,
4 during the non-redemption thereof, furth of all and haill the
4 subjects particularly before mentioned, with the pertinents, lying,
4 bounded, and possessed in manner before described, or furth of
4 any part or portion thereof, rents, profits, or duties of the same ;
4 but also of all and haill the said houses before mentioned, with
4 the pertinents themselves, for and in real security of the pay-
4 ment to the said Thoipas Leishman and his foresaids of the fore-
4 said sum of £900 sterling of principal, and -£40 sterling of liqu-
>' dated penalty*' In the instrument of sasine it was stated that
the attorney appeared, * having, and in his hands holding, an
4 heritable bond and disposition in security, of the date under-
4 written, containing therein the precept of sasine hereafter in-
4 sert, made and granted by John Currie, vintner at the Hamil-
4 ton Arms Inn, Hamilton, whereby, and for the causes therein
4 specified, he bound and obliged himself, and his heirs, executors,
4 and successors whatsomever, to content and repay the principal
4 sum of £800 sterling to the said Thomas Leishman,' &c. After
reciting the precept of sasine, it was stated, that 4 the said John
4 Taylor, bailie foresaid, by virtue thereof, and of his office of
4 bailiary thereby committed to him, gave and delivered heritable
4 state and sasine, with actual, real, and corporal possession of all
4 and haill the foresaid houses, all lying bounded and described
4 as aforesaid, and herein held as repeated brevitatis causa, in real
4 security, and for payment of the foresaid sums of money, prin-
4 cipal, annual rents, liquidate expenses, and termly failures, if
4 incurred ; but redeemable always, and under reversion, in man*
4 ner above mentioned, and that by delivering to the said John
4 Johnstone, as attorney for the said Thomas Leishman, of earth
4 and stone of and upon the ground of the said houses, and a
4 penny money for the said annual rent, as use is; whereupon,
Sc2
780 CASES DECIDED IN. THE
' and upon all and sundry' the premises, the said John Johnstone,
' as attorney foresaid, tasked and took instruments in the hands
c of me, notary public ;** and the instrument concluded by men-
tioning that ' the witnesses were specially called and required bj
•c me (the notary) to the premises.9 In the docquet, the voids
4 instrumentum,' c super,' and * praemissorum' were oniitted, and
instead of 4 pnenominatis testibus/ the words were * preumintB
c testibusV ( disP was written for * dici ;' and it was stated that the
instrument (which consisted of one sheet) was written upon three
pages, whereas, in point of fact, it was written on four.
Founding on these inaccuracies, M'Ghie contended,
1. That as the obligation in the bond was to pay the principal
sum of .£800, with interest, whereas the obligation to infeft was
in an annual rent of .£15 sterling, and as the holding was utterly
irregular, the bond was ineffectual as the foundation of a security
for the principal sum. .
$. That the sasine was also inept, in respect that it proceeded
on an heritable bond and disposition in security, whereas the deed
was simply an heritable bond; that although the precept or-
dained sasine to be given of an. annual .rent, yet infeftment had
been taken in security of the principal sum itself; that it did not
appear in whose favour that sasine . had been given ; and that the
witnesses had been called by the notary, which he ought not to
have done, as he should be a passive spectator; and,
S. That the ; docquet was irregular, and stated what was not
true. ....
To this it was answered,
1. That there was an obligation to infeft, not merely in the afr
.nual rent, but in the subjects themselves ; and that the objects
to the holding rested merely on the circumstance of the word of
having been written in place of off ox from.
£. That the' deed .was truly an heritable bond and disposition
in security ; that the obligation to infeft was not merely in an an-
nual rent, but in the subjects themselves, of which accordingly 1Da
feftment had been given to the attorney of Leishman, by deliver-
ing to him the proper symbols ; and that the circumstance of the
notary having called the witnesses could not affect the validity
of the deed ; and,
3. That the docquet expressed all that was essential to be stated ;
end the rule was settled, that mala grammatica nen vitiat cartam-
The Court, on the report of the Lord Ordinary, repeDed tk
reasons qf reduction, and ^ssoilaied the defender.
-"' Loan Balgray. — The objections are so numerous, that I wta at ■»
somewhat puzzled with them ; but, on looking at the deed in*
COURT OF SESSION. 761
am perfectly satisfied, thai although it might have been mora* cor-'
rectly drawn, yet it is a valid security. The obligation to infeft is
Dot only in an annual rent, but in the subjects themselves. The
objection to the holding is a great deal too critical. In troth, it de->
pends upon the omission of the letter/. In the instrument of sa-
sine the title is clearly deduced in terms of the act of Parliament,
and infeftment is given not only in the annual rent, but in the sub*
jects themselves. I was a good deal staggered by the objection)
that delivery had not been given to the party himself, but to the at-
torney. The Court, however, has found that delivery to the attorney
. is sufficient.
The other Judges concurred.
Pursuer's Authorise 9. -2. Ross, 198; 1. Jurid. St 305 ; S. Bell's St 217 ; Kirk,
ham, Map 21. 1822, (ante, Vol. I. No. 480) ; M'GUIirray, Dec. 9. 1824, (ante,
Vol. III. No. 2?I) ; M'lntosh, Nov. 17. 1825, (ante, Vol. IV. No. 163) ; Bell on
' Purch. Title, 192 ; A. S. Jan. 17. 1756.
Defender's Authorities. —Robertson, Jan. 7* 1742, (10955) ; Clark, Feb. 7. 1752,
(No. 1. App. Sasine) ; M'Donald, Feb. 14. 1778, (16942.)
Anderson and Whitehead, W. S. — C. Balfour, W. S.— ^Agents.
J. Shaw and Others, Fimuers.—Cuninghame. No. 356.
W. Forbes, Esq. and Others, Defenders. — D. qf'F. Moncreiff—
Maconochie — Jlison.
< Parish Church— Heritors.— Circumstances under which an heritor who bad paid
his share of the assessment for rebuilding a parish church, was found liable in a
share of the expenses and interest arising; on bills granted and repeatedly renew-
ed by a committee of the heritors for a deficiency occasioned by^several heritors
having failed to pay their shares.
A dispute having arisen among the heritors of the parish t of Jttpe *- 182?-
Falkirk relative to the rebuilding of the church, a decree was jst Diyisiok.
pronounced by the Presbytery, appointing it to be immediately, Lord Eldin.
rebuilt.. Of this a suspension was brought by Mr. Forbes! of
Callendar, in which .the Lord Ordinary, after a great deal of liti-
gation, approved of a report by Mr. Gillespie, architect, and ap-:
pointed ' the whole heritors of the parish of Falkirk to' hold a
* meeting within the parish church to chodse a collector, adver-
* tiee for contractors, and take the other steps neceasdry for carry-
' ing the work into execution.* A meeting was accordingly h&d,
at which a person attended on behalf of Mr. Forbes, who, while
he concurred in the nomination of a collector* required that; be-
fore entering into any contract, the necessary funds should be
raised, and lodged, in bank. This, however, was not' acceded
to ; and a committee of heritors was appointed, who: were* direct-
ed by the Lord Ordinary and the Court * forthwith to advertise
D.
762 CASES DECIDED IN THE
« foi contractors* and take the other steps necessary for carrying
« the work into execution.'* Some delay having occurred, die Court
was again applied to, and authority was granted to them forthwith
' to enter into a contract, with power to them to assess the heri-
« tors of the parish of Falkirk" for this purpose ; failing which, this
was to be done by the Presbytery of the bounds. A contract was
in consequence entered into by the committee with builders, by
which the price of the church was to be i?859S, and which the
committee bound themselves to pay in certain instalments. The
collector then proceeded to levy the money necessary for payment
of the price, and also for certain extra work, of which Mr. Forbes
paid his share. Several of the other heritors having, however,
failed to do so, and the collector having neglected to obtain pay-
ment from others, a deficiency of funds arose; and although
actions were in some instances raised by the collector against them,
yet ultimate diligence had not been done against any of them.
On the termination of the work, the committee, consisting of the
pursuers, were obliged to grant two separate bills to the builders,
—the one for £T9S : 2 : 6, and the other for .£453 : 6 : 3,— both
of which were discounted with the Falkirk Bank. These bills
were afterwards renewed by a bill being granted to the Bank by
the committee for JB80ft : 11 : 1 ; and, after repeated renewals,
there remained a balance of JP416, for which they granted their
bill. The greater part of this sum consisted of accumulated in-
terest, and the expense of renewing the bills. Thereafter the
pursuers brought the present action against the representatives of
Mr. Forbes for payment of J?119, as his share of the above ba-
lance of ^416.
In defence they maintained, That as Mr. Forbes bad paid his
share, he could not be liable for the arrears due by others, and
still less for the expenses of carrying on a system of renewing
bills, and this the more especially where the collector, who was
under the directions of the pursuers, had neglected to take ef-
fectual means for recovering the arrears.
To this it was answered, That the pursuers were acting gra-
tuitously for behoof of all concerned ; that the collector was no-
minated by the heritors at large, including Mr. Forbes; that they
had been compelled to interpose their personal obligation, and to
raise money by means of bills, and the deficiency which existed
must be divided among all who were able to pay, according to
the respective rates of their liability.
The Lord Ordinary decerned in terms of the libel, and the
Court, by a majority, adhered.
COURT OP SESSION. 768
Lord President-— Mr. Forbes wn a party to the appointment of a
. collector, and at all events be homologated hie appointment ; and if
the collector has neglected to do his duty, Mr. Forbes was as much
answemble for the. consequences as the pursuers.
Lord Balgray.— This was a sort of joint concern. A contract was
made by the heritors with builders, through the interrention of a
committee; but although the committee were bound in the first in-
stance to the builders, yet each heritor was liable ; and those who
paid the price to the builders were entitled to relief from the other
heritors, to the effect of being indemnified for what expenses they
incurred beyond their own proper shares*
Lord Gillies.— The heritors were liable singuli in solidum ; and it
certainly cannot be maintained that the committee, are to bear the
burden of any deficiency of funds which might arise*
Lord Craigie. — This appears to be a question of very general im-
portance ; and in order to decide it, we must look carefully into the
state of the law with regard to the rebuilding or repairing of churches.
It may seem harsh in the defenders to insist that the interest arising
from the arrears due on account* of the building of the church of
Falkirk should fall upon the poorer heritors, or upon the collector or
committee of management, from whose delay the accumulation of
interest arose.
But the question, as it appears to me, must here be decided by
the same rule and principle as if the forbearance had been shown to
the most extensive proprietor in the parish, and as if, by his unwill-
ingness or inability to pay, interest had been allowed to accumulate
upon his proportion of the expense, and bills discounted a dozen of
years on that account. Before the enactment in 1563, the re-
building and repairing of churches was a burden upon the tithes,
and upon those who bad right to the titulary, whether lay or cleri-
cal ; and it is not easy to discover why this was not continued after
the Reformation, so far as there was a sufficiency of tithes for that
purpose, after a necessary allowance had been set apart for the mi-
nister of the parish. But the burden in all cases was laid upon the
heritors by the act 156S. And by the subsequent enactment in
1572, after the necessity of building a church was ascertained, the
heritors, or, on their failure, the Ecclesiastical authorities—that is, the
dignified clergy or the superintendent, whose powers were afterwards
devolved upon the Presbytery— were to assess the heritors for the
sums necessary ; and this assessment might be enforced by a charge
of horning. It is not said according to what standard the assessment
was to be levied from the different heritors, and it might be either by
the valued or real rent ; but it is quite clear that no general liability
was established, each heritor being liable for his own share, and no
more ; and as the area of the church was divided in the same manner,
this was perfectly just, while, if the assessment was recovered, as
it ought to be, as soon as it was due, no loss could arise. ' It follows
764 CASES DECIDED IN THE
from this, that where an arrear is incurred, it must be made effectual
i against each heritor according to the valuation, either by the real or
valued rent, as the case may be ; and so far as any heritor has paid
his proportion when required to do so, be cannot be subjected for
payment of the arrears due by others, and least of all for interest
.. . . upon arrears, and interest upon that interest, aa aecutmiamad by a
.seines of discounts of bills granted by the committee of nmnageoient,
or by the collector appointed by them. In this case it appears that
the late Mr, Forbes not only paid the sums assessed, upon his pro-
perty as-soon as required to do so, but he called upon the committee
of management and collectors to lose no time in recovering the ar-
rears. ' In a question, therefore, with these parties, the represents-
: trees of Mr. Forbes have now a just and legal defence, • Indeed, if
the question had arisen between the contractors and him after they
• had it in their power to recover the money from the proper debtors,
. I do not aee bow Mr. Forbes or his representatives could be required
to pay what never was due by him, and what, with doe attention,
might have been levied from the proper debtors.
• ■
J. Baird, W. S^-W. Forbes, W, S— A gents.
No, 357. Gt iaespie, Weight, and Company, Suspenders. — WUeon.
Walkinshaw, Dow, and Cooper, Chargers. — Skene.
June 5. 1837- Lord ORDINARY refused a bill of suspension of a charge on a
3d Division, -bill of exchange. Court adhered.
Bill-Chamber. ,-„' « « ^ »« «**«*•>«'
Lord Newton. " *• Stuart, S. S. C*— J. Smyth, W. S. — Agents.
M'K.
No. 358. '« A. Speirs, Advocator.— Cumnghame — Speirs.
Ardrossan Canal Company.— D. of F. Mcmcrci/f—Jardine.
Satey-hUeteH— Statute* — Found,—!.— That an offer of s price for lands
sarily includes an offer of interest on the price from the date of
—and,— 2.— That under a local act authorizing a compulsory sale of lands to
be valued by a Jury, if the proprietor should not accept the sum offered at
. price and for damages, and declaring that the expense of the trial should be i
< by the proprietor or the other party, according as the offer was
than the price and damage found by the Jury, the offer and the.
capable of comparison, the provision* of the statute do not apply.
Jane 5. 1837. By an act for making a canal from Ardrossaft in the county of
2d Division. Ayr to Glasgow, the cpmpany of proprietors are authorised to
Lord Pitmiiiy. take such lands as might be necessary, making satisfaction to the
F* owner ; and it is provided, that if the parties ' cannot agree,** to
' the amount or value of such satisfaction* the same shall be as-
' ccrtained and settled by the verdict of a Jury, to "be
COURT OP SESSION. 766
' and chosen by the Sheriff of die county in which such lands,
' &c. are situated.' It is further directed that the ' Jutfy thus
chosen ' shall inquire of, assess, and ascertain the sum or sums of
4 money i& be paidfor the purchase of such lands, tenements, or
4 other heritages, or the recompence to be mkde for the damages
'that shall or may be sustained as aforesaid, and sfiall assess
4 separate damages for the same;' and it is provided, * that in each
* and every case where a verdict shall be given for more money,
4 or for a greater annual rent, as a recompence or satisfaction for
* the absolute sale of any lands, &c, or as a compensation for any
4 damages done or to be done to such lands, &c, than bad been
* previously offered by or on behalf of the said company of pro-
4 prietors,— all the expenses of summoning such Jury, and taking
' i such verdict, shall be settled by the said Sheriff, and defrayed by
4 the said company of proprietors; but if any verdict shall be given
4 for the same sum orient that had been previously offered by or
* on! behalf of the said company of proprietors, or for a less sum
4 than had been so previously offered, or in case no damages shall
4 be given by the verdict, where the dispute is for damages only ,'—
' the costs and expenses of summoning and taking such verdict
* shall.be settled in like manner by the said Sheriff, and be borne
* and paid by the. person or persons with whom the said company
4 of proprietors shall have such concerife.'
In virtue of this statute, the Ardrossan Canal Company, in the
year 1807, took possession of the lands belonging to the advocator
Speirs, offering him, as a compensation for the ground to be
occupied by them, £70 per acre. This offer Speirs refused ;
and, after various unsuccessful efforts to come to an arrange-
ment, the company in 1818 made a second offer at the rate of
4 £5. 10s. per acre yearly, or £\\Q in full of value of ground
4 and. damages.1 This Speirs likewise declined, and in 1814 he
presented an application to the Sheriff, praying him to impannel
a Jury to assess the value of the ground and the damages. The
Sheriff having pronounced an interlocutor, remitting this claim to
the knowledge of an assize, the company gave in a petition to ex-
plain thfeiroffer by a statement of the mode of measurement actpd
on in their settlement with proprietors, which was as follows:—
* Tbat the canal or towing-path, the fence on the outside thereof,
' and one yard of ground aloftg the opposite bank of the canal, is
« the whole extent of property desired to be occupied and paid for
< by the Canal Company* at the said rate of jPIIO per acre. ' &tit,'
* over and above this, the Canal Company- propose and agrtfe to
* pay to Mn Speirs, as they have done to other proprietors, half
4 price, at the said rate of «f 110 sterling, for the sloping batikfc of
766 CASES DECIDED IN THE
' the canal, where they cannot be ploughed,— each sloping hanks
* to remain the property of Mr; Speirs, the heritor/
A Jury was thereafter impannelled, who found that the aereral
lands through which the canal passed were worth certain speci-
fied sums per acre, * according as the whole of the said lands shall
* be found to measure ; that the outside sloping banks be retained
* by the proprietor, and paid for by the Canal Company at the
* rate of £60 per acre;' and that Speirs was entitled to JP80 in
full compensation of all damages, and to interest * on these prices
* and sum from the dates of the actual possession of land ; but de-
* ducting therefrom whatever sums may have bear paid fay the
' Canal Company to the tenants or others for the ground actually
' occupied by the canal, its banks and towing-path, since the same
' were taken possession of.* The ground taken possession of by the
company was subsequently measured under a remit from the She-
riff, and the price calculated according to the rates found by the
Jury, and the Sheriff gave judgment for the sum so determined,
which amounted to £881 9 with interest from the dates of posses-
sion ; and the question then arose, whether this sum exceeded or
fell short of the offer made by the company, on which depended
the point by. which party the expenses were to be paid. The
Sheriff calculated that, according. to the offer, the sum which
would have been given to Speirs would amount to about w£90I,
and held that interest must be understood to have been included
in the offer ; and he accordingly found that the expenses must be
borne by Speirs, who thereon brought an advocation, in which
the only question argued was, whether the offer or the award of
the Jury was the greater. This was at first considered to de-
pend on whether interest from the date of possession must be
held to have been included, though not expressed, in the com-
pany's offer ; and the Lord Ordinary concurring on this ground
with the Sheriff, that interest must be understood in every offer of
a price for land from the date of possession, remitted sunphcrter.
Speirs having then reclaimed, the Court at first adhered to,
and afterwards altered the Lord Ordinary's interlocutor ; but hav-
ing again returned to it, Speirs once more reclaimed, and insisted
on several other points, and, inter alia, That the company having
made a tender which could not properly be contrasted with the
verdict which the act required the Jury to return, must be liable
for the expenses in consequence of their neglect of the provisions
of the statute ; and he objected to the measurement of die slopes
on which the Sheriff had calculated the value of the offer, and to
the slopes included in that measurement. The Coflrt thereupon
remitted to a surveyor to measure and report The surveyor re-
COURT OP SESSION. 767
>
turned a voluminous report* proceeding on eight several views of
the meaning of the company's tender, in regard to four of which
the measurement and valuation was in favour of the company,
while, as to the other four, it was in favour of Speirs. On con*
sidering this, the Court recommended the cause to be settled
by reference, and delayed procedure for some time for that pur-
pose ; but the parties not having adopted this recommendation,
their Lordships ultimately pronounced this interlocutor : — € In
4 respect that the offer in this case cannot properly be compared
' with the verdict, find that the provisions of the statute as to the
' expenses of the trial before the Sheriff cannot apply, and that
' each party must bear their own expenses of that trial, without
* relief from the other ;' and with this finding they adhered to
their former judgment, adhering to the Lord Ordinary's interlocu-
tor, and found no expenses in this Court due to either party.
J. Ker, W. S.— W. Patrick, W. S— Agents.
Commissioners of Supply of Wigtonshire, Pursuers.— ^°* 359.
Greenshields*
Officers of State, Defenders. — Sol.-Gen. Hope — Dundas.
Magistrates of Wigton, Defenders.
Criminal and Lunatic Pauper.— A pauper having been tried for certain acts of
theft before the Court of Justiciary on the indictment of the Crown, and a ver*
diet having been returned finding him guilty, but that he was subject to fits of
insanity at the time of committing the acts charged, on which verdict the Court
ordained him to be confined in the jail of the head burgh of the county where
the crime was committed— Held that the burden of maintaining him in jail, and
afterwards in a lunatic asylum, till liberated on a remission, must be borne by
the Crown, and not by the county where the acts were perpetrated, nor the burgh
of imprisonment, nor the parish of his settlement.
James Fisher was tried on indictment by the Crown, before June 5. 1837.
the Circuit Court of Justiciary at Ayr, for certain acts of theft 2d Division.
committed within the county of Wigton, and a verdict was re* Ld.Cnngietie.
urned, finding ( the pannel guilty, but that be was subject to M'K-
fits of insanity at the time of committing the theft.' The Court,
on this verdict, pronounced a judgment, ordering iiim to be
transmitted to the tolbooth of Wigton, therein to remain during
the remaining days of his life, unless his friends shall find suffi-
cient caution, to .the satisfaction of the Sheriff of the county, to
take the custody of his person, and keep him in such security
aa that be may not have it in bis power to commit such crimes
and irregularities in time camigg,' Fisher being a pauper, the
county of Wigton advanced the sums necessary for his, mainte-
768 CASES DECIDED IN THE
nance in jail, and in the lunatic asylum of Glasgow, to which he
was removed by warrant of the High Court of Justiciary, on a
joint application by the county and the Magistrates of Wigton.
He remained in the lunatic asylum for four years, when be was
liberated in virtue of a remission from the Crown. • The county
then raised this action of relief against the parish of St. Quivox,
as the place of Fisher's birth, and those of Sorn and Ochiltree,
as parishes where he had obtained a legal settlement, concluding
for payment, from one or other of them, of the sums advanced
for his maintenance and removal to the Lunatic Asylum. The
cause having come before Lord Pitmilly as Ordinary, his Lord-
ship pronounced this interlocutor :— * In respect the libel con-
4 eludes against the defenders for payment of certain sums of
* money disbursed by the pursuers, and for. relief of certain oWi-
' gations undertaken by them to the lunatic James Fisher, an
* .alleged pauper, in consequence of a sentence of imprisonment
' for life pronounced against him by the- Court of Justiciary, on
' a verdict finding him guilty of a certain theft, but adding that
( he was subject to fits of insanity at the time erf committing the.
* theft ; and in respect there is no rule of law, or any precedent,
* for subjecting the parish of -a poor man's settlement to relieve
4 the party on whom the burden falls of alimenting him, in the
4 circumstances and in the manner occurring in this case ; and
4. further, in respect the libel concludes -against the perishes which
* are called as defender's, — not that these parishes, or any one or
' other of them shall be decerned in general to aliment the pauper,
4 and that the quantity of aliment «hall be fixed in the usual and
4 legal manner, but concludes for certain specific sums,"— via. for
* £85 : 5 : 1 in name of aliment during a certain named period,
4 and for i?18 : 18 : 4 as the expense of legal proceedings, and of
* removing him to the lunatic asylum, and to relieve the pur-
4 suers of the obligation undertaken for his maintenance in the
( asylum, or otherwise to pay £60 sterling for the aliment of the
* pauper during his life ; sustains the defences, assoilzies the de-
4 fenders, and decerns.1 *
* Against this interlocutor the Commissioners of Supply gave in
a petition ; but the Court, after contradictory judgments, ad-
hered. Thereupon the Commissioners of Supply reclaimed,
and at the same time raised supplementary actions against the
Officers of State and the Magistrates of Wigton, as partiee liable
to relieve them of their advances.
' Informations by all the parties now in tbfe fitid having ham
ordered, it was contended for the Commissioners of Supply,
* That although, fr*m feelings of hamanity, they had advanced
COURT OF SESSION. > 769
the suras necessary for the support of this unfortunate criminal
lunatic, they were confessedly not bound to do so, counties being
subject only to the burden of maintaining prisoners preparatory
to trial, and that in this case the burden must necessarily fall
on the parish of Fisher's settlement, on the Crown, or the Magis-
trates of the burgh of Wigton, where be was sentenced to be con-
fined ; and they argued,
1. As to the Parishes*— That in the case of Soott v. Thomson,
where a pauper lunatic was apprehended and confined for public
security on thrf application of the procurator+fisdal of a county, it
had been decided that the parish where he had haunted, and had
been apprehended, was liable for his maintenance in the first
instance till . that of his settlement should be discovered ; and
that, on the same principle, the parishes were liable in the pre-
sent case.
2. As to the Crown-— That Fisher having been indicted by the
Crown, and having been sentenced to be confined for the public
-security, only in consequence of his being brought before the
Court of Justiciary for the commission of a criminal act, the bur-
den necessarily fell on the Crown as representing the public, for
whose behoof this confinement was ordered. But besides, that
by the Regiam Majestatem, which, whether authentic or not, un-
doubtedly contains the laws in observance in Scotland at an early
period, furious men are directed to be imprisoned by the Justiciar
or Sheriff of the county; and by the act 1487, c. 101, trespassers,
arrested by the Crown are directed to be kept by the Sheriff c on
* our! Soveraine Lord's expenses, quhair it failzies of their aiin
' gudes,' until the Justice Ayr;, so that originally all persons
-liable to be committed by the Sheriff were to be maintained at
the public expense ; and consequently that the rule must 'still
hold, except as to those cases where the burden had been laid by
statute on other bodies, — as the case of prisoners before trial, who
must be maintained by the counties, or of • ordinary criminals un-
der sentence, who must be alimented by the burgh where they
are imprisoned ;— and in proof that the Crown was in use to main-
tain such lunatics confined by order of the Court of Justiciary,
threes instances, mentioned by Lord Pitmilly, where this had
been done, were appealed to.
. 3. As to the Burgh of Wigton— That as the. imprisonment of
Fisher arose from his having been found to have committed a
criminal act, it might be considered as in modum poense, in which
case. the' burgh of imprisonment would be liable in his mainte-
nance.
For the Parishes it was contended, That this not being a case
770 CASES DECIDED IN THE
as to the ordinary aliment of a pauper, bat a question as to the
maintenance of a person indicted by the Crown, and sentenced to
imprisonment by the Court of Justiciary, it did not fall within
that xlaas, the burden of which lay on them.
For the Crown it was argued, That whether Fisher waa to he
considered as a pauper, or as a criminal under sentence, the Crown
could not be liable for his aliment, which in the one view fell on
the parish of his settlement, and in the other on the burgh of im-
prisonment ; and that his being confined for the security of the
public could make no difference, as had been determined in the
case of Scott v. Thomson, in which the lunatic had been appre-
hended and confined on the application of the procurator-fiscal;
and as to the cases alluded to, that they had all occurred in Edin-
burgh, where there is a special and peculiar practice on the part
of the Crown to aliment all prisoners, both prior and subsequent
to trial.
Lastly, it was contended for the Burgh, That this was not
truly a case of imprisonment in modum pcenie, the person here
not being capable of committing a crime, but a ronfinement for
security of the public, the burden of supporting the lunatic dur-
ing which could not possibly fall on the burgh, which could in
no event be liable for the maintenance of prisoners not under
sentence for crime ; and that, even as to these, the liability of
burghs was extremely doubtful.
On advising these informations, the Court adhered to their for-
mer interlocutor assoilzieing the parishes, (see ante, Vol. II.
So. 210,) and they also assoilzied the Magistrates of Wigton,
but decerned against the Officers of State, who reclaimed agafast
the judgment so far as it decerned against them ; butt in so tin-
as it assoilzied the Magistrates of Wigton, it was allowed to be-
come final, and it was necessarily final in regard to the parishes.
The reclaiming petition for the Officers of State, after having
been answered by the Commissioners of Supply, was superseded
until the case of Ramsay,* then depending, should be decided.
On the decision in that case being pronounced, Cases Were ordered
in this process. In these it was contended for the Officers of
State, in addition to their former pleas, That the freedom of the
Crown from the burden of maintaining prisoners after sentence
having been settled by that decision, they were entitled to be 'as-
soilzied from the present claim of relief; and that if the Com-
missioners of Supply were thereby cut" out of all recourse, it was
owing to their own neglect in allowing the interlocutor in favour
• 8ee Ramsay &e. v. Officers of State &c. March 1. 1825, (ante, Vol. Ill, No. 400.)
COURT OF SESSION. 771
of the burgh to become final, and thus permitting to escape that
party on whom the burden, according to the above-mentioned de-
cision, would have fallen.
' The Court adhered to their former judgment.
Lord Justice-Clerk.— -I retain my opinion formerly delivered, that,
under the peculiar circumstances of this case, the County of Wigton
ought to be relieved by the Crown ; and I do not feel myself at all
fettered by the judgment in the case of Ramsay, in which I con-
curred, as the present case is totally different. The cases adverted to
by Lord Pitmflly, and afterwards founded on by the parties, go a con.
stderable way to show that in practice, where the Court of Justi-
ciary, in the discharge of their public duty, have been compelled to
secure «w» who had committed criminal acts, it is incumbent
on the Crown to aliment them while in custody; and the inter-
ference of the Crown by remission, which I think was a very ab*
jectionable proceeding, rather tends to confirm me in my opinion
than otherwise.
Lord Pitmilly. — As a question of expediency and propriety, the
Crown, as representing the public, certainly oufkt to bear the bur-
den in cases of this nature ; but I have great difficulty in discovering
any legal principle for subjecting it. The cases which have been
alluded to were mentioned by me in reference to the question with
the parishes. But all these cases occurred in Edinburgh, and I can-
not give much faith to them now, as it appears that the Crown has
always paid the expense of alimenting prisoners after sentence in
Edinburgh. Bat there is one case, that of M'Killigan at Inverness,
and another at Perth, where the Crown did not maintain the lunatic.
I do not think, therefore, that these instances are sufficient to make
the obligation good against the Crown, and otherwise I cannot see
any legal principle for imposing on it such a burden. The county have
been very liberal ; but they have themselves to blame; if they fail to
obtain relief. They might have succeeded, to a certain extent at
least, against the parishes, had they brought a proper action ; but
they did not do so, and they have also allowed the burgh to escape,
against which they had a good claim.
Lord Alloway*— I think the decision' formerly pronounced as to the
parishes was right ; and as to the burgh, the person here was in a
very different situation from prisoners confined in modum poena? ; so
that the case of Ramsay does not apply to the present, and the Court
therefore were also right in assoilzieing the town of Wigton. But
even were it otherwise, and if there had been any neglect in allow-
ing the interlocutor assoilzieing the town to become final, it would
have lain with the Officers of State, against whom judgment was
given, and who were therefore called on to reclaim against that part
of the interlocutor, if they wished to keep the question as to the burgh
778 CASES DECIDED IN THE
open. In regard to the question of the Crown's liability, I have
been in some degree moved by the cases which we owe to the dili-
gence of Lord Pitmilly, While there is not a single instance of the
county having borne the burden of maintenance in cases similar to
this. Then, if we go to general principles, I still think that the liability
rests with the Crown.* Whetberthe Regiam Majestatem be genuine
or not, there can be no doubt that, from the time of its publica-
tion, the rules contained in it were in practice acted on in Scotland;
and it appears from it that it was the duty of the Justiciar or the
Sheriff to seize furious persons, and put them in bonds; and being so
seized and confined, they must necessarily in those early periods
have been supported out of the public funds, as there were no other
funds which could possibly be applied to that purpose. The burdens
subsequently imposed on burghs, and the rogue-money lerable^from
counties, are applicable to entirely different purposes,, not including
such a case as this. It is clear, therefore, that there could be no
funds for the support of persons thus confined but those of the public,
Tor' whose behoof they were secured ; and looking also to the act
1487, 1 am of opinion that on general principles the Crown alone can
be subjected in this burden.
Lord Justice-Clerk^— J wish to explain in reference to the case of
M'Killigan, mentioned by Lord Pitmilly, that it was of a very pecu-
liar nature, and cannot be used as a precedent here. The person
there was charged with murder. When brought up, he appeared "in-
sane; but the Judge, instead of allowing evidence to be led of his in-
sanity, recommitted him, and continued the diet against him* and he
remained ten years in prison on that warrant, and no other; so that
the case was entirely different from tins. In regard to the case of
Scott 0.' Thomson, I would also wish to observe that it is quite, apart
from this. The Sheriff there, to rid the oeighbourhood of a madman,
(who, however, had committed no crime,) bad him taken up; and
although the Court found, that, until his true pariah was found out,
the one where .he had haunted previously to being taken up vast
aliment him, yet, with deference to that judgment,^ do net Unnk it
can at all affect a case like this, where the lunatic has committed a
crime, and has been confined by order of tbe Court of Justiciary.
V. Hathorn, W. S. — Hunter, Campbell, and Cathcart, W. SL —
Cunikgham and Bell, W. S. — F. Wilson, W. S. — Agefa.
COURT OP SESSION. 778
W. Dibom , Suspender.— Skene— GiBiea. No. 360.
John Boyd, Charger. — Robertson.
BUI of Bxehmige.—A party having -grafited a promissory note, payable to the
creditor of another party, and that party having delivered it for value to the
creditor— Held, that although the creditor had not given value to the granter,
yet he was entitled as an onerous holder to recover payment from him.
Dixon having purchased goods from Boyd to the amount of June 7> 1 837.
£27, obtained a promissory note from Dirom in favour of Boyd, istDivisio*.
which Dixon (whose name did not appear on it) delivered to Boyd, Bill-Chamber.
and guaranteed the payment of it. When it fell due, Boyd hav- I*** Newton,
ing charged Dirom to pay it, he presented a bill of suspension,
alleging that he had received no value for it,— a fact which he
referred to Boyd's oath. Accordingly Boyd emitted the follow-
ing deposition : — * Being interrogated, if the suspender was ever
* indebted to the charger one sixpence during the whole course
' of his life ? depones, That he owes the amount of the promis-
' sory note in question to the deponent Interrogated, in what
' way the debt alleged to be contained in the promissory note
* was contracted ? depones, That he received the bill from Mr.
( Grier Dixon, baker in Edinburgh, who guaranteed the regular
* payment thereof by his letter to the deponent, dated 20th
c August 1826, and therefore the deponent credited Mr. Dixon's
' account with the nett proceeds of the bill in question. Interro-
( gated, if he gave value to the suspender for the note in ques-
* tion ? depones, That he gave value to Mr. Dixon, as above de-
8 poned to, from whom he received the bill, and who guaranteed
' the regular payment of it, and against whom he preserved re-
* course. Interrogated, if the note was made payable to Mr.
« Dixon, or if it was indorsed by him to the charger P depones,
c That the note was drawn payable to the charger's order, and
c not indorsed, and Mr. Dixon's name does not appear on the
•bill/
The Lord Ordinary passed the bill, ( in respect it is admitted
c that the charger gave no value to the suspender, and that Mr.
' Dixon, to whom he depones that hie gave value, does not appear
< to have had any right to the note charged on.' But Boyd hav-
ing reclaimed, and contended that it was proved by his oath that
he was an onerous holder, the Court altered, and refused the bill.
D. Glyns, S. S. C— J. Murdoch, S. S. C — Agents.
vol.. v. 3d
774 CASES DECIDED IN THE
No. 361. J- Coo*> Suspender.— D. qfF. Moncritf—Jatntxm.
Moffat and Coustok, Chargm.-~&kene.
Cau&mer^-A cautioner having bound himself to pay for good* purchased by
another within three months ; and goods having in consequence been sold with*
in that time \ and a bill for the amount, payable at a period anfaeequent to it,
having been taken from the purchaser ; and when it fell due, another bill having
been received by the seller, but the original bill having been retained — Held
that the cautioner was liable to pay the debt.
Jane 7. 1837. W ill i am Haeley, merchant in Glasgow, being desirous to
"T purchase .goods from Moffat and Couston, merchants in Leitb,
LordEldin/ *nd they being doubtful of his credit, and having required a
s. guarantee, the suspender Cook and others, on the 20th of June
1821, granted this obligation : — ' Mr. Harley having laid before
' us your letter to him, dated 4th May, we hereby engage to
* guarantee the payment of whatever flour he may purchase from
* you, to the amount of \*?500 sterling, and during the term of
( three months from this date.9
Moffat and Couston having thereupon sold him goods, Hurley,
on the 9th of July 1821, granted to them a bill for £84 : S : 6,
payable three months after date. The bill fell due on the 12th
of October, being subsequent to the expiration of the letter of
guarantee, but was not paid ; and after a great deal of corre-
spondence, in which Harley threatened to suspend payment, on
the ground of breach of bargain, he transmitted to them, in the
month of November, another bill for the above sum. This hill
was retained by Moffat and Couston, for the purpose, as they
alleged, of being produced, in case Harley should attempt to sus-
pend payment of the first bill. They then indorsed this bill to one
Baird, to endeavour to recover payment as an onerous holder;
buUn this they did not succeed, and they afterwards got it re-
transferred to them. In January 1822 Harley paid jPfcO to ae«
count, after diligence had been raised on the original bill, and soon
thereafter his estates were sequestrated.
Moffat and Couston then brought an action before the Magis-
trates of Glasgow against Cook and the other guarantees, con-
cluding for payment, in which having obtained decree, Cook
brought a suspension, in which he contended,
1. That although the letter of guarantee was limited to three
months, yet they had given Harley credit for a longer period, by
taking his bill payable subsequent to the expiration of that time ;
and,
2. That by taking the second bill without the consent of the
cautioners, and by delaying to follow forth diligence against
Harley, all claim against the cautioners had been lost.
COURT OF SESSION. 775
To this it was answered,
1. That the period specified in the letter had reference to the
furnishing of the goods to Harley, and not to die payment of
them, and that those for which the bill had been granted were
sold and delivered within that time ; and,
8. That in taking the first bill they had merely given
Harley the ordinary credit to which he was entitled ; that the
second bill had not been received in lieu of the first, which bad
been retained, and diligence done on it; and that it was not
relevant to allege that they had not followed forth their diligence.
The Lord Ordinary repelled the reasons of suspension, and
the Court, without hearing the counsel for the chargers, unani-
mously adhered.
Loan President*— If the letter had limited the period of cvedit to
be given to Harley to a precise time* there might have been a weM
founded plea on the part of the suspender ; but the letter is not to
that effect. The suspender and the other cautioners bound them**
jelves to pay for all goods delivered within three months from its
date, and it lay with the chargers to allow the payment to stand
over as long as they pleased.
Lord Balgray. — Certainly, provided the period did not exceed the
ordinary term of credit. In this case, the chargers took a bffl at
three months, which is not denied to be the proper term of credit.
Suppose the goods had been delivered on the last day of the three
months, and that the chargers had not immediately insisted on pay-
ment from Harley, n it possible to maintain that they would thereby
have lost the benefit of the letter ?
Loan Craigie. — The question is, whether time has been improperly
given in the sense of law. I think not.
IjOUd Giuiks concurred.
Suspender's AtOAority.— Marshal v. Bank of Scotland, H. of L. 18*4.
Campbell and Macdowall, — T. Darlihg* S. & C. — Agents*
M artim and Simpson, Pursuers. — Skene — J. M. BeM. No^ 362-
J. Lbishmax, Defender.— R. Bed — Robertson.
This was a question as to whether there was evidence of the June 7. 1897. '
-pursuers (who were writers in Paisley) having been employed as i„DmBiaM
agents by the defender. The Lord Ordinary assoilzied the de- Lord Elaia.
fender, but the Court altered, and decerned against him.
C. J. F. Orb, W. &—J. Stuart, 8.S. C— Agents.
3 d2
776 CASES DECIDED IN THE
No. 363. Eael of Mar, Pursuer.— Jeffrey— Miller.
G. Alexander, Defender. — FuBerton — Skene.
Title to Pursue— Salmon- Fishing. —The estates of a family united into an earldom,
the titles to which included a certain salmon-fishing within specified limits,
having been forfeited to the Crown for accession to the rebellion in 1715; and
having been afterwards purchased (under certain specified exceptions) from the
Parliamentary Commissioners by a party who afterwards transferred them to
the attainted family ; but the conveyances containing merely a general right of
salmon-fishing belonging to the earldom, and not mentioning the special right as
contained in the ancient investitures— Held that the family had a sufficient title
to pursue a declarator of their exclusive right to this fishing.
June 7. 1827. The possessions of the family of Mar were united into an earl-
2d Division, dom, including, inter alia, a right of salmon-fishing in the river
Ld. Mackenzie. Forth, * from the Abbey boat of Cambuskenneth to the Canon
M'K. « mouth,' which had originally belonged to the Abbey of Cambus-
kenneth. On the attainder, for accession to the rebellion in 1715,
of John Earl of Mar, who had been infeft in the earldom under
a charter dated in 1699, containing per expressum the right of
fishing as above mentioned, the estates of the family were for-
feited to the Crown, and were by act of Parliament vested in cer-
tain Commissioners nominated for that purpose. By these Com-
missioners the whole estates, under certain specified exceptions
which did not include the right of salmon-fishing, were exposed
to sale, and purchased for behoof of the attainted family by
Erskine of Grange. In the minute of sale, the Commissioners,
after narrating that Erskine of Grange (Lord Grange) c did at
' the public sale by cant or auction of the estate which belonged
* to John Earl of Mar, attainted, purchase the same,* proceeded
to specify the particulars included in the purchase, * viz. all and
' haill the earldom of Mar, comprehending the lands, lordships,
' baronies, and others under written/and in the enumeration follow-
ing were mentioned * salmon and other fishings, &c. belonging to
' the said earldom, lordships, and baronies/ This minute of
also contained a clause, which, * for preventing all mistake
' lating to the estate of the late Earl of Mar, sold: conform to
• ' the. within minute,' declared that certain specified particulars
. should not be comprehended under the sale; but these exception
did not include any of the rights of fishing. In implement of this
minute, the Commissioners executed a disposition in favour of
Lord Grange, whereby they disponed ' all and haiH {lie foresaid
' estate, above and under written, as the same was bruikel ax*d
' enjoyed by the said John late Earl of Mar, attainted, at tbe
COURT OF SESSION. 777
c time of his said attainder, and as the same are more particularly
' expressed and designed in the infeftments thereof; viz. all and
8 haill the earldom of Mar, comprehending the lands, baronies,
c and others under written.' The disposition then specified the
several lands, together with ' salmon and other fishings, &c be-
< longing to the said earldom, lordship, and baronies.' Lord
Grange afterwards conveyed a joint interest in the estates to
Erskine of Dun, (Lord Dun,) by whom one half of the purchase
money had been advanced ; and during their possession Lords
Grange and Dun sold certain parcels of lands, in none of the dis-
positions to which was there any right of fishing conveyed. In
1739 they executed an entail of the Mar estates in favour of
Thomas Lord Erskine, and a certain series of heirs, from which
they specially excepted the parcels sold by them, and also reserved
to themselves the lands of Easter and Wester Grange, under a
condition expressed in a separate contract, that if Lord Erskine
should relieve them within a certain period of the debts contracted
by them in relation to the premises, they should make over to
him and the other heirs of tailzie these lands, and c haill perti-
' nents thereof;' but, under these exceptions, the deed of entail
conveyed ' all and haill the foresaid earldom of Mar, in so far
* as the same has not been disponed by us,' in the same terms with
those used in the titles derived from the Parliamentary Commis-
sioners as above mentioned.
Lord Erskine made up titles under this entail, and dying
without issue, he was in 1766 succeeded by his sister Lady Frances
Erskine, who served heir of tailzie and provision to her brother,
and was infeft on a precept from Chancery ; and in the retour of
her service express reference was made in the quaequidem to the
ancient investitures of the family, and the salmon-fishings were
mentioned in terms of the charter of the attainted Earl. On the
death of Lady Frances, her son, the late Earl John Francis, (re-
stored by act of Parliament after the present action was brought,)
was served heir of tailzie and provision, and in the special retour
of his service the right of fishings was repeated in the same terms.
Founding on these titles, this action was raised by the present
Earl and his father against Lord Abercromby and the other
proprietors of lands situated on the Forth, between the Abbey
boat of Cambuskenneth and the Carron mouth, to have it found
and declared that they had the exclusive right of fishing within
these bounds. An objection to their title to pursue having been
taken by Lord Abercromby, that question was discussed with
his Lordship alone,— the action being allowed to fall asleep as
to the other defenders. The title of the pursuers having been
778 CASES DECIDED IN THE
ultimately sustained by the Court in the question whk Lent
Abercromby, the action was revived against the other defender*,
and in particular against Alexander, the proprietor of the lands
of Powis, situated within the limits to the exclusive right of fish-
ing in which the pursuers claimed right* Besides has defences
on the merits, Alexander renewed the objection discussed with
Lord Abercromby, that the Earl of Mar had no title to par-
sue, in so far as there was no express mention of the right of
fishing in the conveyance by the Parliamentary Commissioners
to Lords Grange and Dun, or in the deed of entail executed by
tbem in favour of the pursuer's predecessor, from which it most
necessarily be inferred that the attainted Earl had lost that right
between the date of his infeftment and his attainder. They also
contended, that it appeared from a process of declarator in 1662,
between the then Earl of Mar and the Earl of Callander, thai
the right, as under the old investitures, was merely a right to levy
kain fish from the boats within the limits described in the charter,
but not a proper right of salmon-fishing; and at all events, that
any right of salmon-fishing belonging to the attainted Earl was
to be considered as a pertinent to the lands of Grange, which had
been reserved in the deed of entail, and the proprietors of which
had been found by the Court, in an action with one Galloway, in
1755, to have right to salmon-fishing ex adverso of their lands,
on the titles flowing from Lords Dun and Grange.
To this it was answered, That the attainted Earl having been
mfeft per expressum in the fishing in question, it must be pre*
sumed to have remained in his person at the time of bis attainder,
unless it could be shown that he had disponed, or otherwise ceased
to possess it :— that every right belonging to the Earl at bis at*
tainder was vested in the Parliamentary Commissioners, and that
every right conveyed to them was disponed to Lords Dun and
Grange, under certain specified exceptions, which did not include
this right of fishing:— that in like manner, all the rights which
had belonged to the earldom in the person of the attainted Earl,
and thus vested in Lords Dun and Grange, had been transmitted
by them to the pursuer's predecessors, under the exceptions spe-
cified in the minute of sale by the Commissioners, and the deed of
entail itself; and accordingly, that the general conveyance
mon-fishing must have reference to the special right
the ancient investitures of the family. Further, that die
titles clearly proved that the right of fishing belonging to the
family of Mar was not an appendage to the lands of Grange*
but a separate tenement; and that the case with the Eari of Cal»
landet did not at all warrant the conclusion that it
COURT OP SESSION. 779;
to a right of kain fish ; while, on the other hand, the title of the
pursuer, as to a proper right of salmon-fishing within these limits,
had been sustained by the Court in the case with Galloway, and
in this present action in the discussion with Lord Abercromby.
The Lord Ordinary haying reported the cause on informations,'
the Court unanimously sustained the title to pursue, and remit-
ted to the Lord Ordinary to hear parties on the merits.
Inoli8 and Wkib, W. S. — J. Forman, W. S. — Agents.
A. Mein, (Trustee on J. Taylor's Estate,) Pursuer. — Jeffrey No. 364.
— Baird.
M. Tayloe and Others, Defenders. — Greenshields—More.
Fee, or Spet Succtsxonis.—handt having been conveyed to J. T. and three others
inter alia, for the purpose of dividing them into a certain number of share*, and
the truster having declared, ( that I hereby appoint that 4£ of these shares shall
• be held by the said J. T. in liferent, during all the day* and years of his life-
4 tune, and at his decease the fee and property thereof shall be divided among tho
4 children lawfully procreated of his body as follows ;' and having then specified
certain proportions, and instructed the survivors or survivor of the disponees to
see that they should be so divided; and the deed being granted under these con-
ditions—Held that J. T. was merely a liferenter, and that his children were fiars.
On the 7th of April 1819, John Taylor of Springbank exe- June 8. 1827.
cuted a disposition and deed of settlement, by which, on the nar- lgT divis10¥.
rative of his affection 4 to his brothers after named, and to their Ld. Corehouse.
' children,' he therefore, ' under the burdens, provisions, and de- H-
* clarations, and for the purpose of being divided, and held in
* manner under written,1 disponed his whole estate, ' heritable and
( moveable, to and in favour of James Taylor, baker in Whit-
* burn, Thomas Taylor, farmer in Bankhead near Falkirk, Ro-
* bert Taylor, baker in Glasgow, and William Taylor, grocer
4 there, my brothers, heritably and irredeemably,9 &c. ; * surro-
* gating and hereby substituting the said James Taylor, Thomas
4 Taylor, Robert Taylor, and William Taylor, in my full right,
* title, and place of the whole premises, with power to do every
4 thing thereanent which I could have done in life ; and for carry-
4 ing these presents into effect, I bind and oblige myself, my heirs
( and successors, to infeft and seise the said James Taylor,
4 Thomas Taylor, Robert Taylor, and William Taylor, their
' heirs and assignees, in the whole lands and other heritages above
4 disponed requiring infeftment :7— 4 But declaring always, as it is
4 hereby specially provided and declared, that these presents are
4 granted, and to be accepted by my said disponees, under the
4 burdens and conditions under written, and that the said sub-
4 jects shall be held by them in liferent, and belong to their child-
1 reu in fee in the proportions after specified/ After providing
780
CASES DECIDED IN THE
£or payvtent of his debts, and a provision to his wife, the dssd
then proceeded:— c Under these burdens, my said subjects shall be
held by my said disponees in the proportions and on the terms
and conditions following, viz. my said disponees shall divide the
same into twelve equal shares or parts; and I hereby appoint
that four and one half of these shares or parte shall be held by
the said James Taylor in liferent during all the days and yesn
of his lifetime, and at his decease the fee and property thereof
shall be divided among the children lawfully .procreated of fais
body as follows ; viz. one equal share to each of his sons, and
one equal share to his two daughters, Mary Taylor, spouse of
James Ross in Carluke, and Ann Taylor, spouse of Thomas
Gioaart, late baker in Glasgow, to be divided equally among
them : Declaring, that the survivors or survivor of my said dis-
ponees shall see the share devised to the said Mary Taylor and
Ann Taylor equally divided betwixt them, and the half belong-
ing to the said Mary Taylor secured to her in liferent, and to
her children equally among them in fee, and the other half se-
cured to the said Ann Taylor in liferent, and to her children
equally among them in fee. ' In the next place, I hereby ap-
point that two of the foresaid shares shall be held by the said
Thomas Taylor in liferent during all the days and years of his
lifetime, and at his decease the fee and property thereof shall
be divided equally among the children lawfully procreated of
his body, share and share alike* In the third place, I appoint
that one of the said shares or parts shall be held by the said
Robert Taylor in liferent during all the days and years of his
lifetime, and at his decease the fee and property thereof shall
belong to Elizabeth Taylor, his daughter ; but if he shall leave
any other lawful child or children, the same shall be divided
among his whole lawful children, share and share alike ; and, in
the fourth place, I hereby appoint that four and one half of the
foresaid shares or parts shall be held by the said William Tay-
lor in liferent during all the days and years of his life, and at
his decease the fee and property thereof shall belong to and be
divided among the children lawfully procreated of his body,
share and share alike. And I hereby provide and declare, that
in case any of the children of my said brothers shall die, leaving
lawful issue of their bodies, the share which would have de-
scended to such deceased shall belong to and be divided among
his or her children equally, share and share alike ; and in these
terms this general conveyance of my subjects above written shall
be accepted and held by my said disponees, and not otherwise-*
The deed contained neither procuratory nor precept; and on
COUBT OF SESSION: 781
the demth of the grantor, Thomas* Taylor, his immediate elder
brother, expede * general seraos, under -which titles were com-
pleted in terms of the above deed. At the date- of it, James
Taylor had children alive, but he thereafter became bankrupt ;
and Mein havirig been appointed trustee on his estate, brought an
action of declarator to have it found that although, ex facie of
the deed, James was only a liferenter, yet, as the fee was granted
to children nascituris, it vested in him by virtue of law. On the
other band, the children of James maintained in defence, That
he, as one of the four trustees, held the fee in trust for them, and
that he had no beneficial interest under the deed except a bare
right of liferent..
The Lord Ordinary assoilzied the defenders, and the Court
adhered.
The Lord Ordinary issued this note of his opinion :— When a con-
veyance is made to one in liferent, and his children unnamed or un-
born in fee, jt is settled law that the fee is in the parent, and that
the children have only a hope of succession, to prevent the infringe-
ment of the feudal maxim, that a fee cannot he in pendente. It is
perhaps to be regretted that the point was so settled, because the
plain intention of the maker is in consequence often sacrificed to a
mere form of expression ; and the feudal maxim might have been
saved, by supposing a fiduciary fee in the parent, as is done when
the liferent is restricted by the word allenarly or only. Upon this
point, however, it is too late to go back ; but certainly the principle
ought not to be extended to eases which have not yet been brought
under it. In the present case, the subjects are not disponed to the
Messrs. Taylor in liferent, and their children in fee, but, on the con-
trary, to the Messrs. Taylor ia fee ; because the obligation to infeft
k in favour of them and their heirs and assignees. The question
therefore is, whether the fee so given is absolute or qualified, — a
question to be determined by the ordinary rules of construction. It
appears clearly that it is a qualified or fiduciary fee, because it is
granted under certain burdens and conditions. The disponees are
required to divide the property into twelve equal shares, four and a
half of which are to be held by James Taylor in liferent, two by
Thomas in liferent, one by Robert in liferent, and four and a half by
William in liferent ; and it is declared, that at the death of each life-
renter his share or shares shall belong to his children. The mode
of division is also distinctly pointed out. In the case of James Tay-
lor, who had children in existence, the disponees, or the survivor
or survivors, are specially directed to divide the shares of the two
daughters who are named equally betwixt them, and to secure them
to the ladies in liferent, and their children in fee ; and particular di-
rections are also given with regard to the division of the shares of
T9X CASES DECIDED IN THE
Robert Taylor and William Taylor.: all which implie* that tat dst-
position to the Meters. Taylor w a trust to enable tbem to execute
eertain purposes* But where a fiduciary fee is give* to a person,
and it is directed that be himself shall enjoy the liferent, and stffl
• more clearly when a fiduciary fee is rested in several peraoaa col*
lectively, and the survivor or survivors, and each of tbem separately,
is to have a liferent, such liferent must be construed a naked usu-
fruct, in the same manner as if it had been qualified by the word
allenarly. See the case of Seton against the Creditors of Hugh
SetoD, 6th March 1793.
Lord President. — I never was clearer in any case, and do not wish
to hear the counsel for the defenders. James was one of four trus-
tees. The conveyance was taken to them in that character, and for
various purposes. One of these purposes was, that four and one half
shares should be held or enjoyed by James in liferent, and by Us
children in fee ; then, after his death, it is declared that the trustees
shall proceed to divide tbem among his children in certain propor-
tions: The fee, therefore, never was in James, but in die trustees,
and will continue to be so till bis death, when the shares must be
divided in the mode pointed out* It is impossible, therefore, to
maintain that the fee is vested in James.
Lord Craigib was desirous to have heard the counsel for the de-
fenders ; but the other Judges having declined to do so, he expressed
his opinion, that, from the terms of the deed, every thing thereby
conveyed was vested in tbe four brothers ; that if they had no child-
ren, then the fee Would belong to tbem, so that the vesting of the
fee would be dependent on the existence or non-existence of chOd-
ren ; but tbat in such cases it had been settled that the fee vested
in the parent, and that the children had a mere spes successionis.
LoRtt Balgray was of a different opinion. Tbe conveyance was to
tbe four brothers as trustees. They were therefore trustees for the
respective rights of liferent and fee provided for by the deed ; and
consequently the fee could not vest absolutely in James, but only at
one of four trustees. .
Lord Gillies concurred in the opinion of the Lord Ordinary. It was
no doubt true that tbe foe was conveyed to the four brothers ; but
that was under a declaration that they were to hold it in trust for
various purposes, among which it was provided that each of tbem
was to have a liferent, and that the children should have die fee.
Besides, the trustees were to divide the shares in certain propor-
tions among the children after the death of James ; showing clearly
that they were to be held in trust for them, and it was also declared
that this should be done by the survivor or survivors.
J. A. Campbell, W. S. — W. Waddell, W. S.— J. Peddie jun. W. SL
—Agents.
COURT OF SESSION.
m
W. MA%nv.-~SoL>GmL Hope.
W. UNDnwoon.— Iforrqp— ZJT<JTilfer*oft*
Mradbfary.— Held that * mandatory in a proceaa can only be liberated from hit
liability for subsequent expenses by entering a minute on the record, withdraw-
log from acting ai such.
No. 363.
An adjudication having been brought by Maxstens, who
in England, against Linton, on a bond which declared that dili-
gence might proceed at the instance of Martin and Thomson,
writers in Lockerbie, these parties appeared as mandatories This
adjudication was opposed successfully by Underwood, and he was
found entitled to expenses. (See ante, Vol. V. No. 120.) In the
course of the litigation, Thomson's name was alone made use of
as mandatory, and the decree for expenses was issued against him
as such ; but Martin did not enter any minute on the record
withdrawing his appearance as mandatory. Wnen the Auditor's
report came to be approved of, Underwood moved for decree
against Martin, and the Lord Ordinary decerned against him
accordingly. Martin then reclaimed, and contended, That as he
had ceased to act as mandatory before Underwood appeared, and
as the whole litigation had been conducted in name of Thomson,
and decree had been taken against him alone, he could not be
made liable in expenses. But the Court, unanimously holding
that it was a settled rule, that a mandatory could only be liber-
ated from subsequent expenses by entering a minute on the re*
cord withdrawing, and that Martin had not done so, adhered.
Underwood* * ^srfforititj.— -Nelson, Feb. 13. 1883, ante, Vol I. No. 335 ; Hamilton,
May 18. 1823, ante, Vol. I. No. 477; Clarke, Nov. 17* 1825, ante, Vol. IV.
No. 183.
W. M. Little, — W. Martin, — Agents.
June 8. t8!7«
Itr DiTieioiu
LordElduv
H.
J. Ebskine, Pursuer.— Fletcher— Spier*.
D. Scott, Defender. — Robertson— WU&oru
No. 366.
L. O- decerned against the defender, and the Court adhered. Jane 8. 1887.
J. A. Campbell, W. S.— Scott and Booo, W. S. — Agent*.
1st Division.
Lord Eldin.
D.
18* CASES DECIDED IN THE
No. 367. J. C. Portkrfibcd, Pursuer.— I>. cfF. M&ncrHff—Ar\
Trustees of A* Portebjtield, Defenders. — FvMerUn
Rutkcrfbrd.
m
June 8. 1887* I* this case the sole question was, Whether the muir of Duchal
1st Divine* belonged in property to the pursuer, as heir of entail in posses-
Lord Eldia. sion of the estate of Porterfield and Duchal, or jointly with him
D. to the defenders as representing the proprietor of certain unen-
tailed lands which till lately had been possessed by the heirs of
entail ? The Lord Ordinary found that both parties had a pro
indiviso right in the property of the muir, and the Courtedbered.
A. Swinton, W. S. — A. Pearson, W. §• — Agents.
No. 368. Gibson, Thomson, and Company, Pursuers.— FortyA.
Cameron, Defender. — Jameson.
Juri*diction—Proce*i.—Two debts, each under <£S5» hrfving bee* Msfeoed %» «oe
. person, without value, for the purpose of rendering it competent to bring the ac-
tio* in the Court of Session— Held that this was an evasion of the statute 50th
, Geo. Ill, c. 1 IS, and that the action was incompetent.
■ . » ■
Jane 9. 1827. Cameron, a vintner in Inverness, commissioned one Wilson
3d Division. *° order for him certain quantities of porter and ale from Edin?
Lord Medwyn. burgh. Wilson accordingly purchased for him from the pursuers,
Gibson, Thomson, and Company, porter to the value of £\%
and from Younger and Company, breweps in Edinburgh* ale to
the amount of jP24. 15s. Younger and Company then assigned
their claim to the pursuers, without having received value, in
order that the latter might bring an action before the Court of
Session for their joint behoof. To the competency of this action
it was objected, That the two sums pursued for being separate
debts, of an amount which could not have been sued for sepa-
rately in this Court, and the one being conveyed to the puesuere
without value, merely to enable them to bring their action in the
Court of Session, it was an attempt to evade the provisions of the
act 60th Geo. III. c. 112.
Lord Medwyn having reported the cause, and stated his opi-
nion that it was an evasion of the statute, the Court consulted die
other Division ; and all the Judges being of opinion that it was
an incompetent action, and an evasion of the statute, their Lord-
ships instructed the Lord Ordinary to find accordingly.
COURT OF SESSION. 781
Major Jajcm Taylor and CommjomJoksm, Pursuers.— No. 369*
IKqf F. Moncretf—M8Ur.
Sir W. Fobbes and Compaii*, Defenders. — Skene — Anderson.
asjtf Gr«*Yw%-rHeld that a debtor of ft partyjfeoeated fe war-
ranted to pay to his executor nominate, although unconfirmed ; and that a know-
ledge of a certain sum being set apart by the deceased at a provision for his wife
and children does not put the debtor m wtik fide to transfer a sum to the ac-
count -of $tp egejNtar of svttiUr.ampunt at the credit of the d/aotaseoV-UM par-
ticular sum in. question not haying been appropriated by the deceased to that
purpose.
Ths late John Taylor, father of the pursuer, by deed of set- June 9. 1827.
tlement executed in 1808, conveyed his whole property to his jD Division,
eldest son Patrick, (whom failing, his other children in succession,) Ld. cringletie.
as his universal disponee and sole executor, directing, inter alia, M'K.
thai in the event of my not, having .done so during my lifetime,
the said Patrick Taylor, whom failing, my other children in the
order of their succession, shall immediately on my decease, and
out of the first and readiest of my moveable estate, either de-
posit in a bank, or lay out on good landed security, in the option
of my said spouse, the sum of i?5000, and take the bank receipt
or bonds therefor to her in liferent, during all the days and
years of her lifetime, for her liferent use only, and subject to
the deduction of i?I000 to be paid to my daughter in. the event
of her marriage as after mentioned ; whom failing, to the said
Patrick Taylor and my other sons equally among them, or among
such of them as shall be alive at the time, of her .death, and to
the child or, children of those sons who may have predeceased
her.'
A few months before the date of this settlement, Mr, Taylor
had withdrawn the sum of i?5000 from an account kept, with Sir
William Forbes and Company of Edinburgh, in name of a con-
cern of which he was a partner with two of his sons, .Patrick
and William, under the firm of John Taylor and Sons, and h*4
placed it in an account then opened with the bank for the fir^t
time in his own name. This sum of £5000, with the interest ae?
cruing on it, and certain additions made to it, remained <# Mr.
Taylor's credit in his account with the bank at his death, which
happened in 1813. For about a year after this event, thempney
remained in the account in name of the deceased ; but in 1814
Patrick Taylor, the eldest son and executor nominate, applied to »
Sir William Forbes and Company to transfer it to an account to
be opened in his own name ; and to satisfy the bank that he was
entitled to grant a discharge, he sent them his father's deed of
186 CASES DECIDED IN THE
settlement. This deed was submitted to the law agent of the
bank, who being satisfied of Patrick Taylor's tide as uiuvenal
disponee and sole executor of his father, drew up a regular dis-
charge, which was subscribed by Patrick, who bad not, however,
been confirmed executor. The transference was accordingly
made ;— £ 5000 being transferred to a private account opened in
name of Patrick Taylor, and the balance of £1151 of accumu-
lated interest to the account-current of Jobs' Taylor and Sons,
which concern was still carried on by Patrick and bis brother
William. In this state matters remained till 1817, no interest
having been drawn on the i?5000. At this period, the concern
of John Taylor and Sons having become embarrassed, Patrick
Taylor, to induce the bank to increase their accommodations,
transferred this £BO00 to a separate account opened in name of
ibe company, while the accumulated interest was tnunfened
partly to the credit of John Taylor and Sons'9 jgeneral accovnt-
eurrent, and partly in payment of the interest of aa heritable
bond held by Sir William Forbes and Company.
Within a very short period after this second transfer, Win
Taylor and Sons became insolvent, and settled with their credit-
ors on a composition of 10s. in the pound,— Sir William Forbes
and Company making no claim op the estate, as theft* obligations
«Were satisfied by the sums and securities held by them.
In the mean time, the pujeuer Major James Taylor, second son
trf the deceased John Taylor, had gone early in life into the army,
and he had been for the most part abroad with his regiment. On
his return in 1828, finding that his brother Patrick bad again be-
come bankrupt, and was unable to implement his obligations aa
his father's executor, he raised the present action against Sir
William Forbes and Company, concluding that they should be
•ordained to make payment to him of his share of the J&8QW pro-
vided by his father's deed of settlement, on the grounds,
1. That as the will of the late Mr. Taylor had been submitted
to Sir William Forbes and Company, they must have been aware
thai the <^5000 standing at his credit at his death had been set
apart by him as a provision for his wife and children, and there-
fore that they were not entitled to transfer k to tbe private ac-
count of Patrick tbe executor, and thereafter, immediately besare
the bankruptcy of John Taylor and Sons, to their account, to be
liable for their obligations to the bank.
& That Patrick, being the eldest son of the deceased, must be
considered as a stranger quoad his father's moveable succession,
and that, as a stranger executor nominate, Sir William Forbes and
COURT OF SESSION. 787
Company were not warranted to make payment to him of exectttry
funds without his having been confirmed; and, . .
S. That the transactions in question were not to be considered
as a payment to Patrick as executor, but as a collusive transfer,
which left the funds of the deceased still distinguishable, and
which could not be allowed to prejudice the rights of parties claim-
ing under the will in a question with Patrick's creditors.
To this it was answered,
That assuming Sir William Forbes and Company to be ac-
quainted with the whole contents of the deed of settlement, from
the circumstance of its having been submitted to their inspection,
there was nothing in that deed to lead to the conclusion that the
e£5000 standing at the credit of the deceased had been set apart
by bim as a provision for his wife and children ; but, on the con-
trary, the necessary inference was, that this sum was not so set
apart, because, 1. The sum provided to the widow and children
was directed to be placed on heritable security, or in a bank on a
bond or receipt in name of the widow in liferent, and children in
fee, while this sum was allowed to stand on a simple receipt to
the deceased ; $. The deed of settlement was executed only a few
months after this £B000 was placed to the credit of the deceased
in his private account, and yet in it he assumed that he had not
yet set apart the provision for his wife and children ; 3. The
widow was to liferent the sum provided in the will, but the in-
terest of this £5000 was never drawn ; and, 4L«£1000 of the pro-
vbion was to be paid to the daughter of the deceased on her mar-
riage; bat though that event took place, no such sum was drawn
from this account.
In these circumstances, therefore, it was contended,
1* That the bank could not, consistently with a liberal system
of doing business, refuse to transfer the sum in question to the
private account of the executor, who was fully entitled to uplift
and discharge it.
2. That an eldest son was not necessarily a stranger to his
father's moveable succession ; but that, at any rate, a debtor was
entitled to pay to a stranger executor nominate without confirma-
tion, although he thereby ran a certain risk in the event of his
paying to a party not having truly the right to the qffice, and
although ha might insist on confirmation in order to secure him-
self against such risk ; and,
. 3. That the transactions complained of were a fair bond fide
payment to the executor of the deceased, which the bank were
not only entitled to make, but which they could not have de-
clined.
788 CASES DECIDED IN THE
The Lbrd Ordinary iweoihaed 8ff W«faor*«4» and Com-
pany, and the Court adhered.
*.* >. » ■**
The Loan Ordinary observed in a wtt^lW just, on which the
pursuer found* bis argument, in order ft subject ]Sif Wijliam Eorben
end Company to payment of hW claim, is.joul ef feu*de*im». R
is admitted that the late Johp.Tejj*r> aata« fg^ae th*3BP«* 1803,
pot into the hoase of Sir William Eorbes>aa$ C*mj*i*y, ia hm
account-current with them, £5000, which stood in his own name
at his death, and, with interest thereon, amounted to greatly above
£0006; but that sum was not appropriated by fcfirr Taylor *>aiy
particular purpose whatever. Certainly It was not deposited with
„ the company on a note by them payable Jo Mfrs. Taylor in Ijfi^
rent for her.lifore*t ipe only, and his saw in^e^fuhjafSita Aft de-
duction mentioned in his will, dated in September 18IS. The
money lay as a balance due tb him in his afccntinVCtareiit, and was
subject to the call of his eldest sou Patrick Taylor, who was his
father's sole executor. Accordingly, he did call Jjr the money
in 1814, when £5000 of it was transferred to the individual ac-
count of Patrick Taylor, and the balance to'Ae'account d John Tay-
lor and Sons, of which company Patrick was a partner. # On ibis
occasion the will of John Taylor was 'shown to Sir William Forbes
and Company, who remitted it to their agent, Mr. "Thomas Cran-
stoun, who advised them that they were in safety to pay to PWnck
Taylor, as he was one of the nearest of Kin, and sole SxSWBoritf.
minate of his father. Accordingly they transferred ifce 'ibotoy ia
the manner already described, and f?ok a discharge, without requir-
ing Patrick to be at the expense of a confirmation. The judgments
of the Court warrant such a payment, and indeed this point was net
disputed at the Ban; but it TOMfrt thai ifa* oompaay -saw the wfl,
thereby, knew .the. purpose .for > wbieb t^^OOPjWaa flastfeated, and
. ought not to have paid it without confirmation, in which
would have been found in the. Coanuiesary. Court, whereby
suar would have recovered the money. But admitting far «
that the company had examined the will, all that they iwaatlrhaja
was, that John Taylor ordered his executor, if h*> had Hat foi
himself in his lifetime, to deposit in a bank, ox lend en •heptaty) se-
curity, £5000 for the purposes above mentioned. But they could
not know that he bad "not deposited money fat a6mtf other bank, or
lent it on heritable security, on a note or bond payable to ma wife
in liferent, and his sons in fee. Sir William Forbes a^Comneay
were certain that die money in their hands had not been #a append,
because it just stood as an article in John Taylor's aeeonnt-evrnat-
The Lord Ordinary therefore thinks that the basis on which me
pursuer founds his charge of error or oversight m wanta$ and that
the company were warranted in making the* payment to Mr. Taylor's
COURT OF SESSION. 789
executor dominate, and are net liatrie to repay tb* whole or any pert
to the puraoer.
"he Judges were ail agreed on tbe general point, that a debtor of a
party deceased, while entitled to insist on a confirmation for bis own
security, is warranted in paying his debt to the executor nominate,
though a stranger, without confirmation, taking the risk of his being
really entitled to that character; and, with the exception of Lord
ABoway, their Lordships were likewise of opinion that the view
taken by the Lord Ordinary of tbe other parts of the case waa cor-
rect.
u' ubdJkoriti«s-3. Erik. 9. 26 ; 3. Stsir, 8. 63 ; 2. Bell* 06 ; Alison, Nov.
116S, ()£138) | Tait, Feb. 12. 1779, {3142) ; Bell, Nov. ?8. 1781, (3861.)
Defender*' AuthoriHe*.— Baird, Feb. 3. 1744, (14393) ; Jamieson, Dec. 6. 1808,
(F. C.) ; 8pence, Feb. 20. 1751, (14399) ; Buchanan and AMd, July 90. 1784,
(1487B) ; Frsser, Ftb. 10. 1784, (39S1) ; Alison, May 26. 1802, (9928.)
J. Form ay, W. S. — Cranstoun and Andebson, W. S. — Agents.
\
J. Dodd, Advocator. — Cockburn — MaMand. No. 370.
A. Allan, Respondent— -Jeffrey — R. Bruce.
This waa a dispute between a landlord and his tenant, the de- Jane 12. 1827.
cisian of which depended on the import of a proof. The Sheriff lariJ^ioir.
of Haddingtonshire decerned against Dodd, but the Lord Ordi- Lord Eldin.
nary assoilzied. The Court, however, altered, and affirmed the D.
judgment of the Sheriff.
[ J. McGregor, — W. Lang, W. S — Agents.
A. Thomson, Pursuer.— J. HTNeiU. No. 371.
J. Mills*, Defender. — Ctminghame — Skene.
In this case a question waa raised, whether an heritable creditor June 12. 1827.
in possession is entitled to the expenses of a process for having in divibiok.
the subjects repaired ; but, in consequence of a final interlocutor Lord Eldin.
of the Lord Ordinary, the Court found that they could not enter H*
upon it, and pronounced judgment accordingly.
C. Fisher,— J. Blair, W. S. — Agents.
vol. v. 3 k
390 CASES DECIDED IN THE
* *
No. 372- Dame Alicia Dundas or Wedderbubn and Others, Puratpn.--
. Sol-Gen* Hop*~-AU$an.
J. Dundas, Defender.— Cockburn,
Pretcription^-pebitor non prtiumiHtr <&more.--CircumsUnc<* in wJrie&H.-A
* debt incurred by am heir of entail, prior to recording the entail, wu kept ip
against a succeeding heir, notwithstanding the lapse of 66 year*.— 2.— The
maxim, debitor non presumitur donare, held not to apply to the case of i fi-
tter settling provisions on his children to an extent greater than be1 wu found
to do by his contractor marriage.
June is. 1827. The late James Dundas of Dundas, father of the punuen,
9d Division. "d grandfather of the defender, possessed the estate of Daodis
Lord Pitmilly. under an entail executed in 1669, but not recorded till 1774- In
B. 1764 he. granted to Major Charles Lyon a promissory note for
* ^600 of money borrowed from the latter, who, of the same date
with the promissory note, annexed to it the following holograph
appointment or settlement : — * I desire that the interest of the
' above i?60O sterling may be paid yearly to my alter Susan
c during her life, and the principal sum itself, with whatever io-
* terest shall thereafter become due upon it, I do hereby dispose
'of it in favour of Mr. Dundas' daughters or other younger
'children by his present wife, in the manner that shall by Mr.
' and Mrs. Dundas be found most convenient.' Shortly after this
Major Lyon died, and in 1766 Mr, Dundas executed a bond
in favour of Miss Lyon, which proceeded on this narrative >•>
' Whereas I was addebted and resting owing to Charles Lyon,
( Esq. Major of General Alexander Marjoribanks* regiment, 10
c the service of the States of Holland, now deceased, certain sums
< ' of money, as fo which it was agreed between tha said Charles
' Lyon and me, that in case of his death before his only suter
' Miss Susan Lyon, I should, in lieu and place of making paj-
' ment of the said sums, grant to Miss Susan Lyon a bond of an-
' nuity for «£80 sterling, payable yearly at two terms, during all
« the days of her life.* The bond accordingly contained an obli-
gation to pay such an annuity, and declared that Miss Lyon, by
acceptance thereof, discharged all debts due by Mr. Dundas to
Major Lyon. Miss Lyon accepted this bond, and the £W ***
paid to her yearly during her life.
In 1772 Mr. Dundas executed a bond of provision in favour of
his four daughters, which bore to have been delivered to.tbe •**
Lord Melville, ' to be kept by him as a delivered evident for behoa
' of my said daughters ;' and it contained an obligation toja/ *°
each of them <£700, and an annuity of of85 a year, redeemable f^
<e850. This was more than the entail allowed to be laid on U*
COURT OP SESSION. 791
estate in favour of younger children, and also more than he was
bound to do by the marriage-contract with his wife, (a daughter
of Lord Forbes, through whom his son and heir succeeded to
considerable funds, the produce of estates in England,) although,
under the marriage-contract, the spouses were entitled to settle
on their younger children such part of the produce of the English
estates as they might think fit.
In 1778 (the entail not being recorded till the subsequent year)
Mr. Dundas executed a trust-disposition of his whole lands and
estate in favour of certain persons, of whom his brother John
Dundas and the late Lord Viscount Melville, then his Majesty's
Solicitor-General for Scotland, were two,— -for the purpose, after
answering a reserved annuity to himself, of paying off his whole
debts, and thereafter to denude of the lands conveyed ; but de-
claring that the trustees * shall be entitled to retain possession of
' the said lands and estate, even after my decease, ay and until
* they be relieved of these obligations, which are hereby declared
* to be a real burden upon the whole of said lands themselves ;'
and further providing, « that in case the purposes of this trust
' shall not be fulfilled before ray decease, then my said trustees
' shall be obliged to denude, upon their being relieved of their
* obligations as above mentioned, in favour of the heir entitled to
* succeed to me in the foresaid lands and estate/ Great part of
Mr. Dundas' debts were unliquidated at the period of his death,
which happened in 1780, and his son and heir, George Dundas,
executed a deed, consenting to the subsistence of the trust till the
trustees should be relieved of their obligations for payment of his
father's debts.
George Dundas died in 1792, and was succeeded by his son,
the present defender, then a minor. The estate still continued in
the hands of the trustees ; and it appeared that in 1808 Lord
Melville, one of their number, and the person with whom the late
Mr. Dundas' bond of provision to his daughters was lodged as a
delivered evident for their behoof, found among some old papers
the promissory note to Major Lyon, with the holograph appoint*
ment thereto annexed. This he transmitted to Mr. John Dundas,
writer to the signet, also a trustee, and agent for the truster's fa-
mily, who, in answer to his Lordship, observed, — * I remember,
' when a settlement took place betwixt the late James Dundas
' and Miss Lyon after her brother's death, no evidence in writing
* could be found of the sum due to the Major. A state therefore
( was made up from Mr. Dundas' memory, making the sum due
' the Major «£600, and the bond was granted for' an annuity
' equal to the interest of this sum. The note of hand and Major
Se2
79* CASES DECIDED IN THE
' Lyon's appointment as to the application of the sum must haye
' been put into your Lordship's hands as a mutual friend to the
* parties ; and I submit to your Lordship if the discovery of it
c does not add i?600 sterling to the debt on the estate of Dundas,
c and that, on the death of Miss Lyon, the trustees ought to pay
' over this sum to the late James Dundas' daughters."
In reply to this, Lord Melville wrote Mr. John Duodas: —
' There can be no doubt the promissory note I sent you creates
' an addition of <£600 of debt on the estate of Duodas, and that,
' after the death of Major Lyon's sister, it must be paid to the
'daughters of James Dundas of Dundas.' Accordingly, an entry
of the. debt was made in the accounts and views of affairs made
up by the trustees, and the <£S0 payable yearly to Miss Lyon,
which bad formerly been entered in the books as an c annuity,"
was thereafter entered as * interest' of the debt to Major Lyon.
In the year 1805 the trustees, having in their hands funds ex-
ceeding the debts remaining unextinguished, drew up a state of the
affairs of the trust, with a view to wind it up, and denude in
favour of the defender, who was still a minor. In this state the
£600 in question was mentioned as an outstanding debt due to the
late James Dundas' daughters, after the expiry of Miss Lyon's
liferent ; and it was proposed that the trustees should convey to
the defender the estate vested in them in trust, and assign to him
what balance should remain in their hands, on his tutors granting
them a discharge, and ' becoming bound to procure and report
' discharges of all outstanding debts due by the late James Duo-
' das of Dundas, or his father, or their predecessors* at and pre-
' ceding the trust-disposition, so that no debt may remain to affect
4 the estate prior to the 28d February 1773, the date of the trust-
' -disposition.** This was accordingly carried into execution,, and
no objection was ever stated by the defender, who attained n*a-
jority in 1814, and continued thereafter to pay to Miss Lyon the
£30, (which was entered in his factor's accounts as * briefest,*)
until her death, which did not take place till the year 1820. On
this, event, the pursuers, daughters of the late Mr. Dundafe de-
manded from the defender payment of the £ 600 due to Major
Lyon, and destined by his note of appointment to theox after
Mias Lyon's death, as being a debt of the late Mr. Dundas prior
to. the recording of the entail, and granting. the dispoajrionahpre
mentioned. .This the defender refused to do without the authority
of. the Gourt, as being an heir of entail, and . not refmsentag his
grandfather otherwise. , The pursuers thereupon raised the pre-
sept action, in defence against which the dejfcoder-pleajded,
1. Prescription by the sexennial and the long prescription.
COURT OF SESSION. 798
{2. The discharge by Miss Lyon to the late Mr. Dundas ; and,
8. The maxim, debitor non presumitur donare, the late Mr.
Dundas haying settled provisions on the pursuers beyond what he
was bound to do by his marriage-contract.
To this it was answered,
1. That the claim was not founded on the promissory note, but
on the whole circumstances of the case, so that the sexennial pre-
scription did not apply ; and as to the long prescription, that the
debt was kept up, — 1. By Mr. Dundas* acknowledgment in the
bond to Miss Lyon, the debt mentioned there being clearly the
same with that for which the promissory note was grafted ;— 8.
By the acknowledgment of the trustees on discovery of the. note
and appointment, which had undoubtedly been lodged with. Lord
Melville, to be .held for behoof of the pursuers ; — 3. By the pay*
roent of the * interest' to Miss Lyon ; — and, 4. By the obliga-
tion come under by the tutors of the defender, on the estate being
reconveyed by the trustees, to procure and report dpfhargss of
all outstanding flebts, the one in question being specially .men-
tioned, which obligation was not only not objected to by the* de-
fender within the quadrienmum utile, but homologated by him:
by the payments made to Miss Lyon as ' interest9 of the debt*
2. That Miss Lyon could not discharge a debt conveyed by
her brother to the pursuers ; and,
3. That the maxim, debitor non presumitur donare, did not ap-
ply to the case of provisions by a father to his children, and
especially could not apply here, where the provisions were so in-
adequate to the station of the parties, and where the bond of pro-
vision, and the document of debt had evidently been deposited
by the father .with a third party, to be held for behoof of his
daughters.
The Lord Ordinary reported the case on informations* and the
Court, by a majority, decerned against the defender for payment
of the debt in question.
Lords Justtch-Clerk, Glenleb, and Pitmilly were of opinion
that under all the circumstances, especially that of the defender's
tutors becoming bound, on the reconveyance Of the estate, to pro-
care discbarges of the outstanding debts, this £600 being expressly
mentioned as one of them, the debt had been kept up against the
present defender; and that the maxim, debitor, &c. did 'not at all
apply; but Lord Alloway entertained great doubts on both points.
Pursuer*' Authorities*- (3.)— 1. Stair, 8. 2 ; 4. Stair, 45. 17; 3. Ersk. 3. 93;
Winrahame, Dec. 15. 1668, (11433); Kunniergham, Feb. 17- 1731, (11438);
Ord, Dee. 1685, (11499) ; Spaden, Jan. 14. 1819, (F. C.) ; Dugmd, Dec. 11. 1818,
- <oot rep.) . ,
794 CASES DECIDED IN THE
Deflnder'4 Ju&onties.—&)— Fife, Nov. 30. 1751, (WOt); MitfacMQ, Not. It.
1766, (11453) ; Greig, Feb. 19. 1768, (11454.)
J. Hope, W. S. — R. Campbell, W. S-— Agents,
No. 373. J. Campbell Jun. W. S. Pursuer. — More — Hamilton.
J. Smith, Defender.—/). ofF. Moncrrif—J. M. BdL
Bill of Exchange.— Non-onerotlty of indorsee only proveable by writ or oath.
June 19. 1827. This was an action at the instance of Campbell, writer to the
2d Dmsioic. signet, for payment of a bill of exchange drawn by Bell and
Ld. Mackenzie* Sword, merchants in Leith, upon and accepted by the defender
B- Smith, and which had been indorsed by Bell and Sword to
Campbell, who was their agent, and who discounted, and was
afterwards obliged to retire the bill, Bell and Sword baring bo-
come bankrupt. Smith in defence pleaded noo-onerosity on the
part of Campbell, and attempted to assimilate this case to that
between the latter and Dryden, mentioned ante, Vol. III. No. 5(80;
but the circumstances being different, and Smith having failed
to establish his defence by the writ of party, the Ixrfd Ordinary
decerned against him, and the Court adhered.
In reference to the case of Dryden- it was observed, that the jodgssent
of the Court in that case amounted to this, that if a party's ac-
counts show that the money paid by an agent to retire a bill, in
which his constituents were obligants, was truly advanced out of Us
constituents* money, and that he had acted merely as an agent or
hand to transfer the money, the circumstance of his name being on
the back of it as indorsee would not entitle him to insist on the de-
fence, that he could only be put to his writ or oath.
Campbell and Ton, W. S.— J. T. Mubrav, W. S— Agents.
No. 374* J. Elder, Suspender— *Stfft#oni.
A. Jacx, Charger.— £Jtai*^Jfalfcsoau
Free* «*— /??*»*«*.— -Held that a party who had allowed a witness tone
without objection, was not afterwards entitled to. allege that he had an intereit
in the cause, and so was incompetent,— he being aware of the objection st the
time of the examination.
Jane 13. 1887. Jacx, a writer in Glasgow, brought an action against Elder
1st Division. ^ore ^e Sheriff of Lanarkshire, alleging that he had been em-
Ld. Corehouse. ployed by him to act as agent for his son in certain1 judnafpro-
8. ceedinga, and concluding for payment of his account. Elder
having denied the employment, a proof was allowed, and
J
COURT OP SESSION. 795
Taylor was adduced as a witness, and his evidence admitted
without objection. The Sheriff having decerned against Elder,
he brought a suspension, in which be alleged,
1. That Jack had not taken out his attorney license during
the course of the proceedings for which he claimed payment;
and.
2. That Taylor was other a partner of Jack, or was his em-
ployer, and therefore, having an interest in the cause, was an in-
competent witness.
To this it was answered,
1. That the objection as to the attorney license was removed,
by Jack having availed himself of the privilege conferred by the
7th Geo. IV. c. 44 ; and,
8. That the allegation as to Taylor was entirely new, and had
not been made in the Inferior Court ; that Elder had not ob-
jected to his being received as a witness, and that he must have
been as fully aware at the time of his examination as he now
was of the truth of his allegation ; besides, it was contradictory
of itself, because Taylor could not both be employer and part-
ner; and that at all events he ought not to be allowed a proof of
it without paying the whole previous expenses.
The Lord Ordinary ' repelled the third reason of suspension,
viz. ' that the charger is barred by the Stamp Act from recover-
' ing or prosecuting for any charges of the kind, in coosequenco
* of being unlicensed ;' and in respect it is now alleged that one of
the two persons examined on the part of the pursuer in the
Inferior Court is an incompetent witness, on account of his
having interest in the cause, remitted the cause to the Sheriff,
with instructions to recall the interlocutors brought under sua*
pension, to allow a proof of said allegation, and to do otherwise
in the cause ob to him shall seem just ; but found no expenses
hitherto incurred due to either party.'
Elder acquiesced in the first part of this judgment ; but Jack
having reclaimed, the Court altered, and found the letters or*
derly proceeded.
The Judges were of opinion, that from the statements made in the ra-
cord by Elder, he must hare been fully aware of the objection to
Taylor at the time when he was adduced as a witness, and that
therefore he was not now entitled to plead that objection.
A. MIntyrk, S. S. C. — J. Macoonell* W. S. — Ageats.
796
CASES DECIDE*) IN THE
No. 375.
«. J.
P. Hay, I*q, Pursuen^ifyr^.
J. Henoeeson and Others Prfwfcr*-*
This was a special case, in which the Lord Ordinary decerned
against the defenders ; but the Court altered, and remitted to
i» • «
1st Division. .- . . _
LordEldin. inquire into certain facts.
D. tad A. Thomson, SsV & Agents. ■ >
1st Division.
Lord Eldin.
S.
No. 876. R- Domop, Advocator.— BticAflnan— X APNeifL
J. aad J. Rkid, Respondents — Robertson Ca»an.
Bill of Exchange.— Hd&, that there being no lawful evidence or fraud against the
holder «T* WD, he is entitled to tfce ordinary privileges of a holder.
• • ... ••• / 1 ■ '
»
June 13. 1827. The respondents presented a summary petition to the Sbetiff
of Ayrshire, stating that they had entered into, a transaction ***>
William Dunlop, by. which tbey ha4 accepted * .bill for 4HHk-
10s., drawn hy and payable to him, for the purpose of hating it
discounted, and the proceeds applied, to payment of the share of
a vessel which they bad purchased ; . that William Dunlop had
fraudulently indorsed it to Robert Dunlop, who .was. fully
that he held it for the above, purpose ; and therefore titty
eluded that Robert Dunlop should be ordained |o deliver up the
bilL In defence, Robert Duolop stated that be waa. a <ar«liter
of William for £15< 10s. ; that be had received the bill in pay-
ment of that sum, and that the balance waa to be. paid to WiU
liam; that he was willing to pay that balap^httt thafcbs «p*an
onerous holder to the extent of £\&, 10s, The Sherift aftenor-
dfdfling him to undergo a judicial e*aa»nafi<a)» tQ,wtachfba*ob*
mitte^j decerned against, him for re^titjuiwi of. thebtU. . i«hi«j
An advocation waa then brought by Robert Dwpiop, in which
hQ maiptaiqed, That as he was a holde* of the WWthe at
legeA noivojierosi ty and maU fides .could only bepiwedikrj.his
writ or oath ; that it was not relevant to allege that , Wil*am
Dunlop had been guilty of a breach of trust, and that thr judi-
cial examination was incompetent.
To this it was answered, That as a relevant avermeBVof inud
had been mqde, parole proof, and consequently a, judicial exa-
mination, were competent ; and that there was sa fficjent evidence
to establish the frfwd. • »_.-.,•»..•
The Lord Ordinary altered, advocated the causey 4«i
zied Dunlop ; and the Court adhered.
COURT OF SESSION. 797
The Judges were of opinion that there wat .no legal evidence of the
allegation of fraud, and therefore that Dunlop must be entitled to
tbB oirdiaery prmleg«8 of the holder of a ML
Duwlop and LaiUlaw, W. Su-G. M'Clelland, W. S.— Agents.
J* Taylor, Advocator.—/). qfF. Moncreiff—Sandjbrd. No. S77.
G. Wioht, Bespoodeot^-lfo™.
Joint Obligation— 4 gent and Client.— •Circumstances in which a joint obligation
to be at the expense of carrying on certain actions for mutual beheof was held
to be limited to the' expense of the actions while conducted by an agent specially
appointed m the lyaqsHmt, and, net to extend to tike espeise moulted In. the
actions alter the renunciation of that agent, and the appointment of another*
Mil. Mill, farmer of the post-horse duties for Scotland, bay- June 14. 1897.
ing claimed from the proprietors of saddle-horses let out to hire So Dmsiow.
the niile^ post-horde duty hi addition to the assessed tax paid L<L Mackenzie.
for these hone** several hbrsetfrirers in Edinburgh and Glasgow B.
combined' to defend; at thfefr jbiftt expense, any actions that might
be raised 'for the -purpose of trying their liabifity for this charge.
A meeting was accordingly heM for this purpose, when the fol-
lowing minute wa* ag^ed to :— < Sd Match 1818.— We, the sub-
scribers hereof, hereby nominate and appoint Samuel Words-
worthy Eeq< a* ^reses, and James Scott &c. as a committee to
regulate as todefertdirtgthe actions raited or to be raised against
any of oumamber for bringing ; saddle-horses under the 'post-
horse duties ; and we, conjunctly and severally, become bound
for any expenses that may be incurred hi any of the said actions,
to bepaid'by'eat* of usMn1 pro^rti tfn to the number of horses
specified opposite to each dfotir signatures.41 This minute was .
subaoribedy atftodg otfier*, fry the respondent Wight, a stabler in
Edinburgh, who was- then pbssessed of oiie saddle-horse, which
he let out to hire, but which he only kept for about a twelve-
memth afterwards. It did not appear that Wight had attended
the:geoeifer mMtkig'at which this minute was agreed to, or that
be stibseqfuetttty attended ahf meetings of the association ; but he
subscribed * regttkfcrttatd of agreement, which, after stating the
purpose of the association, proceeded thus:— -* From these and
variotid other reasons and Viandes, we hereby covenant and agree,
as we have hereby covenanted and agreed, to enter into the pre-
sent-agreement^ foftbe purpose of defending, at a joint expense,
all actions raised or to be raised against any one or more of our
number by the said John Mill, Or any other lessee of the post-
horse duties for .the time being, with the view or intention of
making saddle-horses liable in duty under the post-horse duty
798
CASES DECIDED IN THE
acta, when let out either by time, by distance, or in any other
way whatever, otherwise and always excepting- when let out in
posting within the true intent and meaning of the foresaid acts
of Parliament ; and for the forwarding these our views and in-
tentions, and for the more sure and ready completion of our
wishes in opposing the foresaid actions, we hereby agree to no-
minate and appoint, as we have hereby nominated and appoint-
ed, Samuel Wordsworth Are. as a committee to regulate as to
what actions are to be carried on at our joint expense, and also
to give instructions to the agent appointed or to be appointed
for defending the said actions/ The deed also contained the
appointment of an agent m the following terms :— * We having
faith in* the ability of Mr. Charles Murdoch Adair, writer in
Edinburgh, in his capacity as. agent, hereby nominate and ap-
point, as we have hereby nominated and appointed him to be
our sole agent for defending or carrying on action raised or to
be raised against any of our number wtth the intsntsons afore-
said, in whatever way may seem most expedient to a majority
of the committee at any meeting regularly -called by the asad
Charles Murdoch Adair, which we hereby empower torn to do
as the convener hereof, to which situation of convener and secre-
tary to the said committee he is hereby virtually appointed ;
and we hereby grant power to and authorise the said oumniittec
to receive all accounts due by us to the said Charles Murdoch
Adair, both as secretary and convener to the committee, and as
agent in the foresaid actions, with power also to theu to audit
mid pay the same ; and. we jointly and severally become bound
in payment of all sums they may find due to die said Charles
Murdoch Adair as aforesaid, in the same respect as if we had
each severally acknowledged the same to be due.9 And is con-
cluded as follows :-^* We hereby also covenant, agrees and hind,
as we have hereby covenanted, agreed, and bound oursttot,
conjunctly and severally, for all expenses to be incurred in eon-
sequence of this agreement, or which has been incurred in con-
sequence of any other agreement entered into- or to be intend
into for the purposes aforesaid, we paying the said i ipniSM in
proportion to the number of horses specified oppotate to each cf
our signatures ; it being always understood and agreed, that in
case of any one or more subscribers paying more than their due
proportion of the expenses incurred or to be incurred, that they
shall have due recourse on the others, bnt in so for ecdy as their
share exceeds the rest' . *- '
Several actions having been ndsad by Mr. HiM for poynwnt
of the post-horse duties against partis* m this afliMiinsm, ihi ill
COURT OF SESSION. 7»
fence was conducted by Mr. Adair in tortus of the above deedi
but after considerable procedure had taken place in these actions,
Mr. Adair being obliged to leare Edinburgh, intimated to the
committee that he was under the necessity of giving up the mai»»
agement of them. On this a meeting was called for the purpose
of appointing a new agent to carry on the depending processes,
and at this meeting the advocator Mr. Taylor was ™"nnnMfiH
agent and secretary in place of Mr. Adair. The respondent
Wight did not attend the meeting when this appointment was
made, and he stated that he had refused to subscribe a minute
sanctioning it when requested to do so by the committee ; but he
did not aver that he had disclaimed the actions, or intimated that
he would no longer hold himself liable for the expense of carrying
them on. Shortly after Mr. Taylor's appointment, an assessment
of four guineas for each horse was laid on by the committee, (in
virtue of powers contained in the deed of agreement,) to be ap-
plied in payment of the expenses already incurred. Of this
Wight paid two guineas without objection ; but when the remain-
ing two guineas were demanded, he at first refused to pay, but on
an action having been raised against him by the advocator Tay-
lor before the Sheriff Court, he paid the amount. In the mean
time the actions went on, and additional expense was incurred to
an extent which, when the matter was finally concluded, rendered
a contribution of twelve guineas for each borse necessary. Wight
having refused to pay this, Taylor, as treasurer and secretary of
the association, raised an action against him before the Sheriff of
Edinburgh, which was met by the defence, That Wight had only
agreed to become bound to pay such expenses as should be in-
curred by Mr. Adair, but not such as should be incurred by any
future agent who might be nominated. The Sheriff appointed
Taylor to prove that Wight had remained a member of the asso-
ciation after Mr. Adair ceased to be agent, and on his failure to
lead any evidence other than the production of the original mi-
nute and deed of agreement, the Sheriff assoilzied Wight. Tay-
lor thereupon brought an advocation, in which it was contended,
That by subscribing the original minute and subsequent deed of
agreement, Wight had bound himself not merely to Mr. Adair
personally, the employment of whom was not the object of the
agreement, but to concur in the joint defence of certain actions
for the mutual behoof of himself and the other subscribers ; that
these actions having been accordingly raised, he continued liable
in the expense incurred until a disclamation on his port, an4 con*
sequently that it was incumbent on him to prove a disclamation,
(which he did net, however, allege,) and not on Taylor to prove
MO CASES DECIDED IN THE
hi* <rem*ia*ng a member of the aseoeiatioti, which he
rily didriH he<wpressJy withdrew ; and further, 'that by the two
payments to Taylor he" had homologated Iris appointment as
agent.
To this it was answered, That the- deed of agreement, by its
.very terms, limited the. responsibility of the subscribers to such
expenses as should be incurred by Mir. Adair, and by him alone;
and that, so-far from homologating the appointment of Taylor,
the refpsaXoa the part of Wight to subscribe a-uuatrte *• that
effect, and the withholding payment of the two guineas till an
action was raised, amounted to a virtual withdrawal from the
aasooajion, while. the money then paid, was (anc landing to Wight's
aJfcgntion) applicable solely to the expenses incurred by Mr.
Adair.
X)^ I^r A Ordinal^ xemilited sim^iaM^aiviythe Goart, by a
majority, adbeced* .,...// .
Lord Allqway*— -I eqteitain £reat 4oub^^( ^^iflterjpo^flr* When
a number of persons agree for the joint purpose, of eajjg?\sgf)Q, a law-
suit,^ think that, if the action do raised! eaqb must cqntjnue hound
until he positively and expressly withdraws. Here there was a writ-
ten agreement for the benefit of aft the suoscribers, each being en-
titled to be defended if attacked, the rate of liability being set-
tled^; and is it possible to say that the circumstance of the agent em-
ployed going abroad was to dissolve the association, and stop the
• proceedings in actions already commenced, althongh certainly each
person 'had a vole in the appointment of ms successor?' 1 cansot
distinguish this ease from those of J^tt»swo4)^,'Deww*f V*<^
-• and Kerr* «• • . *-\ \* .p- •■■< •>> ••
Lftan Jusws-Cleiuc.— The agt atmertt bete is very spatial* sad
seems ceafiaed to actions to be conducted by. Gbartea Marram
,,Ao^, ^bo^apppmte4j»todyaft^«^ but oonvefw of .the caas-
r.mittee. It is jus* on the definite *erm* of (bi^ii)strn«am|* tsitUot
.not think it extended to expenses incurred fry WgfOtfes^aueajf *•
committee might appoint ; and $e real evidence of tip. ca*e ajpws
that this was the understanding of the committee, aa. they (cajkd oa
the individuals who had subscribed the agreement to ccucarja the
appointment of Mr. Taylor. A question is tnererore iatsea* here
quite apart from the cases of Spottiswoode fcc, where the obligation
was to carry on a common object, and not to employ a particular
person. I cannot, therefore, think that the Sheriff was wmog in
calling on Taylor to show that Wight consented to he responsible
after Mr* Adair ceased te he the agent ; and av he will net aader-
teke that proof, it comes to the genera) point, as to wrack I am of
opinion that the obligation was confined to the expenses' la he fc-
carred by the particular individual appointed agent. I do not differ
COURT OF SESSION. 801
from Lord Alk>way on aay general prumalea; hut> oil the tipraaltMi
of thk cafe, I thick the Lord Ordinary* mterlequter U rights «
Loan* GLWfj&x and Pitmiu.y oeneureed*
Advocator's Authorities— Spottiswoode, June 91. 1786, (11605,) iff. in H. of U;
X«rr, June 94. 1093, (sate,' Vol. H. No. 39fc)
^F. Taylor, — G. St icdman,— Agents,
J. MTJonald, Pursuer and Suspender.— A. Jt^e^fl ' No. 578,
W. Denny, Defender and Charger.— Jpmeson.
thnthtoj^CkcmtomoB* in which the owner of * entail vessel heM not UsAfe Jbr
furnisjungs nutfe on the orders of tiro men eeiploye d to n*ttg ate her, contrary
to his instructions.
Tmr»Wa'feditttiori of a decree of absolvitor, *ith expenses, June 14. 1897.
pronounced by the Water Bailie of the Clyde in an action' at the' 2d ^^lw,
instance of M'Donald, a sailniaker in Glasgow, against Denny, Lord Medwyn.
shipbuilder in Dumbarton, for payment of the price of a set of F*
sails furnished for a wherry belonging to him, and also a suspen-
sion of a charge for the expenses. The facts, as brought out in
evidence in the Inferior Court, are fully stated in the following in-
terlocutor of the Lord Ordinary, to which the Court adhered : —
' Finds that the defender employed two of his carpenters, at a
' time when he had little work for them as suob, to navigate a
' wherry in the Clyde, and accordingly they made a few trips be-
' tween Dumbarton and the Broonuelaw : Finds that McMillan,
' one of these carpenters, was the master, and whs empowered
' by the defender to order from MTherson, a sailmaker, with
' whom the defender had formerly debit, t#o second-hand sails
« for the'use'of theivhterry t Find* that&eWart, the bther*lad, as-
4 sumed the charge of executing this Order, hut, insfelad of ftnd-
' ingf out' M'Pherson, he gave the commission to the pursuer, and,
« ad he admits hihiself, ' thinking that he was serving the'de-
" fendefi'todk it upon him to order two hew sails/ notwithsUhd-
" ing ot what If Millan said/ who had observed at the time that
* the defender^ would grudge new sails:* Finds that when the
' new sails ' were furnished, McMillan declined to receive them
• Thie observation M'Millan deponed to hare spoken in the pursuer's presence
in a loud voice ; and it also appeared in evidence that the pursuer, when asked by
the men if there was a M'Pherson, a aailmaker at the Broomielaw, bed answered
that there had been a person of that name a aailmaker there, but that be had left
the place ; while, in point of fact, there was a M'Phepon, a, saHmaker rat the
Broomielaw, who had carried on the business for fourteen years.
CASES DECIDED IN THE
at the Broomielaw, and refused to sail with die wherry to Dum-
barton, which was accordingly navigated by Stewart alone; and
the defender also at Dumbarton immediately rejected the sails,
as not being such as he had authorized to be purchased : Finds,
that both at the delivery of the sails, and afterwards when
they were rejected, the pursuer treated with Stewart as his em-
ployer: Finds, that the sails were neither ordered nor furnished
in terms of the commission given by the defender to IfMillan,
and that the defender is not bound by the unauthorised pro-
ceedings of one of the seamen who took it upon him to act in
this matter, as he immediately disclaimed his actings, and this
disclamation was communicated to the pursuer by Stewart,
when a proposal was made that he should take the sails upon
himself. Upon these grounds, finds that the pursuer can have
no churn against the defender ; therefore, in the suspension finds
the letters orderly proceeded, and in the reduction repels the
reasons of reduction, assoilzies the defender, and decerns.*
W. Guthsu, — C. Fishek,— Agents.
bank.
H.
No. 379. J- Keb, W. S. Pursuer.— D. cfF. MoncreiJJT—GiUu*.
Magistrates of Kisxwall, Defenders.— Codfcftttrw—
Marshall.
Triennial PtvjcrtpMm.— Held,— 1.— That cash advances made by a law agent do
not fall under the triennial prescription ;—4>uV— 2. — That hia proper twiw 11
account does.
June 15. 1827. The pursuer, as assignee of the late Charles Innes, writer to
1st Division, the signet, and of Innes and Handyside, writers to the signet,
Lord Meadow- brought an action, in 1828, against die Magistrates of Kirkwall,
for payment of certain accounts terminating in 1805L These ac-
counts consisted, first, of disbursements in cash, on behalf of the
burgh, by Mr. Innes ; and, secondly, of claims for remuneration
for professional business*
In defence, the Magistrates pleaded,
1. That part of the cash advances were unvouched ; and that,
as they were made by a law agent, and formed part of Us busi-
ness account, they fell under the triennial prescription ; and,
% That the business accounts were prescribed ; and farther,
that it appeared that they had not been incurred by the tmrgb,
but by Sir Thomas, afterwards Lord Dundas, who was inter-
ested in the politics of that burgh, and for whom Ilatt and
Handyside acted as agents.
. COURT OF SES6ION. £06
To this it was answered,
1. Thai the cash advances were completely vouched by the
evidence ia process, and could not be affected by the triennial
prescription ; and,
2. That it was also established that the business had been per-
formed on account of the burgh, and that although the trea-
surer kept no books, yet, from the accounts in his possession, it
did not appear that they had ever been paid ; and therefore this
was to be considered as equivalent to the writ of party, and suffi-
cient to establish the subsistence of the debt.
The Court, on the report of the Lord Ordinary, ' sustained
the defence of prescription as to all the business accounts pur-
sued for, and to that extent assoilzied the defenders from the
conclusion of the present action; but found that the plea of
prescription does not apply to the cash advances, and remitted
to the Lord Ordinary to proceed accordingly ; and found no
expenses due to either party*1
Pursuer's Authorities.— Dickson, July 5. 1681, (11090); Watson, Feb. SI. 17U,
(11095); Donaldson, Jan. 15. 1796, OHIO); Mulrhead, Jane 30. 1748, (2506);
Leslie, Not. 15* 1808, (P. C.)
Ker and Dickson, W, S. — J. and C. Nairve, W. &— Agents.
W. Gibson, Pursuer. — Miller. No. 380.
D. Stewart, Defender. — Cuninghame.
Pr*6e9Si-~ Incompetent to remit a cause from one Dmston of the Court to another,
merely on account of its connexion with a cause which had formerly depended
in that Division.
» • • *
Afteb the action against the defender Stewart at the instance June 15. 1827.
of Gibson, as partner of William Gibson and Company, men- 8j) D
tioned ante, Vol* I.; No. 485, had been dismissed by the Second
Division in respect of defective instance, he raised a new action
relative ta the same matter before the First Division. In defence
against this action it was pleaded, inter alia, That the former
judgment of the Second Division formed a res judicata; and on its
coming before the Inner-House of the First Division, their Lord-
ships, of consent, remitted it to the Second Division, * in respect
c of the connexion of the present question with another case lately
* depending before the Second Division, and of the proceedings
* had therein, as well as the arguments founded thereon ;' but the
Second Division, ' in respect there is no ease depending in this
« Division to which this action can be remitted ob condngentianr,*
remitted it back to the First Division. -
804 CASES DECIDED IN THE
Their Lordships were agreed, that except in the eases of
to a "depending process, where reorits were ssttboriaBd by act of
Parliament, it was incompetent to send a case frees one Dirisiea to
the other on the ground of connexion with a
rag.
J. Mackenzie, Agent.
m
i
No. 381. A. Gouklay, Pursuer.— &&-<**». Hape—Bo*wdL
D. Stbaton, Defender. — Cowan.
Sef%u$tratiQ*~-J gent and CUent,—- Ail agent in a sequestration held aet
Bible for neglect in the performance of duties proper to the trustee; sad Ob-
. served, that the agent could not be in any shape recognised by the Court ss an
officer in the sequestration.
June 16. 1827. . The late William Bisset having been in 1812 elected trustee
2d Division. on th® sequestrated estate of John Peebles, distiller at Stars of
Ld. Mackenzie. Forneth, appointed the defender Straton, a writer in Perth, to be
B* agent in the sequestration. Bisset in many respects neglected the
provisions of the act of Parliament, and at his death, which hap-
pened in 1816, he left the estate in great confusion, with a con-
siderable part of his intromissions unaccounted for. Gonrlay,
the pursuer, having been then elected trustee in his {dace, raised
an action of count and reckoning against bis mpmscnutnis, to
which he also called Straton, the agent in the sequestration, eon-
eluding against him on the ground, that as Bisset was not a man
acquainted with business, it was the duty of Straton to have
taken care that the provisions of the statute were properly fol-
lowed out, and that he himself had intromissJona with the famfe
of the estate.
To this it was answered by Straton, That his only intromis-
sions were of debts due to the estate, which he had been em-
ployed to recover by means of legal diligence, and it was not al-
leged that he had {ailed to account for these; while, as to the
neglect and defalcation on the part of Bisset, the trustee, that he
alone and his representatives were liable; bat that no cMsvoonld
lie against the agent, who had nothing to do with tin ■■■na|iri
ment of the estate. . ^
« The Lord Ordinary, while, he decerned against the represent-
atives of Bisset for the balance unaccounted for by him, sad re-
fused to allow any commission to be deducted, fciiwaliiul Straton,
and found him entitled to expenses. In the mean toaeSteetoa
had raised an action against Gourlay for jisjinm) isf ihsVsniinwini
incurred to him as agent, amounting to
COURT OF SESSION. 806
taxed off by the Auditor* . . This action Grourlay resisted oo the
sane gramdM» whreh.be founded his own, jckdm against Stra-
ton; aad thei.eontaDdei that,, at *lke*enfet as J?l# had been
taxed off, the totter was not entitled to expenses of process. The
Lord Ordinary, however, decerned in favour of Straton'for the
balance due of the accqunt as taxed by the Auditor, with ex-
penses ; and the Court unanimouDy refused reclaiming notes on
the part of Gourlay in both processes.
Lord Justice-Clerk. — These papers raise the question, whether, when
creditors appoint an unfit person as trustee, they are entitled to look
to the agent as responsible for the proper management of the estate.
If that were a part of our bankrupt law, this person's conduct would
desecremuch consideration ; but I have always discountenanced the
idea of recognising the agent as an officer in a sequestration. I can-
not hold an agent to be a necessary person in a sequestration j — the
' less litigation,' anfl the 'less use there is for an agent, the better for
• the estate. The Court, therefore, wilt not recognise agents in. the
character bete -sought to be uoposedos then, and the Lscd
< narySi iatsrioeutor sast consequently be adfasral to. ,
Tbs- other Judges caseload.
' Pw*w*U ;#Mforf*^YoangrM*i»h 1. 1«7, (smt* Vol. V. No. *S1.)
■ •. - ,
B. Gray, S. S. C. — Donaldson and Ramsay, W. S. — Agents.
» ;
Mrs. Jean Btf cTHAfcrAN and Hvsba-kd, Ftorwer*^8ke*c*±~Iwry No. 382.
Corbett, BosTHWici:, arid CdtatANY, and Trustees* Defenders.
Truttec— Expenses*— Trustee for a bankrupt litigant not entitled, in listing. himself
as party p* the process, po insert a qualification that he shall not be liable for
the expenses. .-.*•* :
.drHsa was an action at tl*3 instance; of Mrs. Buchanan #pr p^y- June 15. 1827.
mont.of.fi. promissory note for ^1800 by Corbett, Borfhwkk, 2d Division.
and Company ,. of which concern her son was a partner; and. the Ld. Mackenzie.
defence waa, that she hud agreed- to accept, pf her son #6 sole MK*
debtor. > The; defenders, however, having failed to substantiate
this averment, the Lord Ordinary pronounced an interlocutor
decenMngtiagainst them, with expenses. Agftiast this interlocu-
tor the; defenders, gave m a, rectajnwg note; but shortly af-
terwards ihey-bekseme bankrupt, and conveyed their estates to
trustees lor &ehpof of their creditors. . When the cause was put
out for adviskjg, the trustees craved to be allowed to sist them~
selves, under a reservation that they were not to be liable for
vol. v. 3 F
808 CASES DECIDED IN THE
ling on the Act of Sederunt 1756, and concluding that Muoro
should be ordained to find caution to pay the arrears of rent* and
also the future rents, during his continuing in possession; and
failing his doing so, that he should be decerned to remove from
the farm. Munro found caution for the future rents; but hav-
ing denied that the arrears were owing, he declined to find cau-
tion. The Sheriff, being satisfied that these arrears were due,
ordained him to remove.
. Of this judgment he brought an advocation, and contended,
1. That the Act of Sederunt 1756 had no reference to verbal
leases, nor to such leases as were continued from year to year
by tacit relocation ; and therefore that an action of removing*
founded on an irritancy created by that act, was incompetent;
and,
2. That although the rent was originally .£16 per annum, jet
it had been subsequently reduced in amount, and any arrear was
more than extinguished by counter claims.
- . To this it was answered,
/I. That tbe Act of Sederunt was equally as much applicable
to a tenant possessing on a verbal tease, as to one who poweaed
on a written lease; and that a landlord, who has allowed a tenant
to possess for a series of years by tacit relocation, instead of re-
quiring a' written lease to be executed, was entitled to avail him-
self of the benefit of the Act of Sederunt ; and,
2. That as it was admitted that the rent was originally ^
and there was no evidence of tbe alleged reduction, nor of the
counter claims, the judgment of the Sheriff was well founded.
The Lord Ordinary repelled the reasons of advocation, «wi
remitted simpliciter ; and the Court adhered.
Lord President^— I see no reason why the Act of Sederunt
not apply to this case as much as to that of a written lease, wbaa
a tenant possesses from year to year, he may no doubt be removed
at the end of any one year ; but if he has incurred airean, ana re-
sist an action of removing, there appears no incompetency »*■
daining him to find caution for these arrears, and for the rents wto*
may arise during his subsequent possession ; and failingluB d«ag*»
to decern him to remove. Accordingly the Act of Sederoat ■
daily applied to leases which are about to expire.
The other Judges concurred.
L, Mackintosh, S. S. C— T. M'Kbnzib, W. &— Agents.
COURT Of1 SESSION. 807
No settlement having been obtained of these reserved item*, the
pursuers, m 1814, raised ah action against David Graham be-
fore the Sheriff of Stirlingshire. After considerable procedure,
in the course of which a forged receipt for the price of the
cow and hogs was lodged, and afterwards withdrawn from pro-
cess, the Sheriff found David Graham liable to implement his
letter by procuring a submission of the items in question. Both
parties having advocated, the Lord Ordinary assoilzied David
Graham ; but the pursuers reclaimed against his Lordship's judg-
ment, and at the same time raised a supplementary action, call-
ing both John and David, who were now the only surviving
trustees of the deceased Mr. Graham. In this supplementary
action a record was made up, and the case reported by the Lord
Ordinary to the Court, who took up both actions together. For
David it was pleaded, That his letter did not imply any oblige
tion on himself, but merely that the discharge should be no b*t
to the pursuers following out any proceedings against John
Graham for recovery of the items reserved ; and for John it was
contended, That hi* brother had no power to bind him ; and al-
though the pursuers were entitled to have count and reckoning
with the trustees, they Were not entitled to demand from him, as
an individual, any sum received by him from the trustees, td
whom he was ready to account, and against whom he had sufll*
cient counter claims to set off against the items in question. The
Court recalled the hiterfaoutor of the Lord Ordinary in the ad-
vocation, conjoined it with the supplementary action, found that
both defenders were accountable under Datid Graham's letter*
and remitted to the Lord Ordinary to proceed accordingly.
W. Rennv, W. S—-G. Dunlop, W. S— W. Dickson, W. S— Agents.
J. Mraao, Advocator.— ^Jeffrey— A. JITNeiB. No. 384.
P. Beown, Re8pondenk-*-/affHtf<>tt — Matkesoru
landlord and Tenant— Act of Sederunt lith Dec. 1756.— Held that an action of
removing, founded on the irritancy of the above Act of Sederunt, aa to being
in arrear of two years rent, is competent againat a .tenant poeeeeaing under a
verbal leaae from year to year.
In 1810 Munro obtained a verbal lease for one year of the June 16. 1837.
farm of Balnafoi on the estate of Culcairn from the factor of lBTDmBIOirt
certain trustees, who held possession of the estate pending a Lord Eldin.
competition for it. He continued to possess by tacit relocation
for several years ; but having incurred an arrear of more than
two years rents, Brown, who was appointed judicial factor on the
estate, brought an action before the Sheriff of Ross-shire, libel-
3f£
808 CASES DECIDED IN THE
linjg on the Act of Sederunt 1756, and concluding that Munro
should be ordained to find caution to pay the arrears of rent> and
also the future rents, during his continuing in possession ; and
failing his doing so, that he should be decerned to remove from
the farm. Munro found caution for the future rents ; but hav-
ing denied that the arrears were owing, he declined to find cau-
tion. The Sheriff, being satisfied that these arrears were due,
ordained him to remove.
. Of this judgment he brought an advocation, and contended,
1. That the Act of Sederunt 1756 had no reference to verbal
leases, nor to such leases as were continued from year to year
by tacit relocation ; and therefore that an action of removing,
founded on an irritancy created by that act, was incompetent ;
and,
2. That although the rent was originally £16 per annum, yet
it had been subsequently reduced in amount, and any arrear was
more than extinguished by counter claims.
- . To this it was answered,
. 1. That the Act of Sederunt was equally as much applicable
to a teoant possessing on a verbal tease, as to one who possessed
on a written lease ; and that & landlord, who has allowed a tenant
to possess for a series of years by tacit relocation, instead of re-
quiring a written lease to be executed, was entitled to avail him-
self of the benefit of the Act of Sederunt ; and,
; 2. That as it was admitted that the rent was originally -£16,
wad there was no evidence of the alleged reduction, nor of the
counter claims, the judgmebt of the Sheriff was well founded.
The Lord Ordinary repelled the reasons of advocation, and
remitted simpliciter ; and the Court adhered.
Lord President. — I see no reason why the Act of Sederunt shook!
not apply to this case as much as to that of a written lease. Where
a tenant possesses from year to year, he may no doubt be removed
at the end of any one year ; but if be has incurred arrears, and re-
sist an action of removing, there appears no incompetency in or-
daining him to find caution for these arrears, and for the rents wfckA
may arise during his subsequent possession ; and nflingliis doing so,
to decern him to remove. Accordingly the Act of
daily applied to leases which are about to expire.
The other Judges concurred, -
•• •
L, Mackintosh, 8. S, C.— T. M'Kenzib, W..&— Agento.
COURT OF SESSION. 809
J. Stbel, Pursuer.— R. BdL No. 385.
A. Hamilton, Defender. — A. ATNeiil.
This wan a question of accounting, in which the Lord Ordi- June 16. 1827,
nary pronounced judgment against the defender, and the Court 1st Division.
adhered. Lord Eldin.
H.
J. Johnston, S. S. C. — J. Malcolm, S. S. C. — Agents.
Robertson's Trustee, Petitioner.— Skene. No. 386.
J. Oughterson and Others, Respondents. — Pyper.
Sefuestration~BanJlcrupt>~Pro<Mi4.'--}{e\<Lr--\. --Th&t an interlocutor of a Lord
Ordinary, during vacation, in sequestration, is not final, but is reviewable by
the Inner-House.— -2. — That it is competent for the trustee on a sequestrated
estate to apply by summary petition to the Court of Session for warrant to exa-
mine persons connected with the business of the bankrupt.— 3.— That the part-
ners in trade of the bankrupt (though not in the business in respect of which he
was sequestrated) fall within the meaning of the Bankrupt Statute as persons
connected with his business, and that they cannot escape examination by a dis-
solution of the partnership subsequent to the bankruptcy, though prior to the se?
. questration ; and,— 4.—- That the trustee is not obliged to prepare interrogatories '
to be communicated tto the parties prior to examination.
James Robertson was a partner of two separate companies June 16. 1827.
of Robertson, Oughterson, and Company, and William Leitch and 2d Division.
Company, carrying on business in Greenock. His affairs having Lor(j Eldin.
become embarrassed, he called a meeting of his creditors in the F.
end of June 1826, and was subsequently sequestrated as an in-
dividual in August following. A competition arose for the office of
trustee; but, on this being determined by a judgment of the Courts
the trustee confirmed presented an application to the Sheriff of
Renfrewshire for the examination of the bankrupt * and others
« connected with his business,9 in terms of the S2d section of the
Bankrupt. Statute. The Sheriff granted a general warrant ac-
cordingly, and under it were cited James Oughterson and Wil-
liam Robertson, — the one a nephew, and the other a nephew-in-
law of the bankrupt, and his partners in the concern of Robert-
son, Oughterson, and Company, — George Oughterson, a clerk in
that house, and William Leitch, the bankrupt's partner in the
concern of William Leitch and Company. The avowed object
of the trustee in citing these parties for examination was to expis-
catethe circumstances attending an alleged fraudulent transfer-
ence made by the bankrupt, within sixty days of his bankruptcy,
of JP1200 held by him as stock of the concern of William Leitch
and Company in favour of his partners in the concern of Robert-
810 CASES DECIDED IN THE
son, Oughterson, and Company. At the diet of examination, and
before proceeding to take the deposition of the bankrupt, the
trustee moved the Sheriff that Oughterson, one of the parties
cited, should not be allowed to be present at the examination of
Ae bankrupt. To this it was answered, That Oughterson, as a
creditor, was entitled to be present, and that his own citation was
illegal, as he did not fall within the description in the warrant of
persons connected with the business of the bankrupt.
The Sheriff, f in respect that Mr. Oughterson is ranked as a
c creditor of the estate, and does not appear to fall under the
< description of persons who might properly be cited under the
« general warrant for examination along with the bankrupt,' re-
fused, hoc statu, to sustain the objection. Thereupon the trustee,
taking it for granted that the Sheriff would not allow the ex-
amination of Oughterson and the other persons, did not press him
to examine them, but immediately presented a petition to the
Lord Ordinary on the Bills, (this being in time of vacation,)
petting forth the circumstances, apd praying for warrant to
cite for examination before the Sheriff the persons formerly cited
under the general warrant, and also George Robertson, brother
of the bankrupt. To this petition answers were given in for
Oughterson and others, who contended, •
1. That the petition was incompetent, as the Bankrupt Statute
only, authorized an application for examination to be made to the
Sheriff, but not to the Court, and a* the trustee h*d not insisted
for the examination of the respondents, or obtained a judgment
from the Sheriff as to their liability to he examined.
2. That none of the parties sought to be examined were, within
the meaning of the act, members of the bankrupt's family, or
connected with his business, by which must be understood the
business in respect of which he was sequestrated,— both the con-
cerns of Robertson, Oughterson, and Company, and William
Leitch and Company, being perfectly solvent ; and besides, ss
to the former of these, the bankrupt had ceased to be a partner
by advertisement in the Gazette in July 1826, prior to the date
of the sequestration, though subsequent to the bankrupt having
called a meeting of his creditors.
3. That, in particular, Messrs. Oughterson and Robertson, be-
ing creditors of the bankrupt, were not liable to be examined, the
more especially as they were the parties to whom the transference
which the trustee wished to challenge had haen made, «nd conse-
quently could not be subjected to a judicial examination for the
purpose of cutting down theft? wo rights.
4. That 9» to Geptge Rotation, he had wt been cited be-
COURT OF SESSION, 811
fore .the Sheriff, and could not competently be called on to ap-
pear man application to the Court of Session in the first instance;
5. That at all events the parties could only be examined on
special interrogatories previously prepared and approved of, and
communicated to them beforehand.
The Lord Ordinary having granted warrant as craved, Ough-
•terson and others presented a reclaiming note to the Court, to the
competency of which it was objected by the trustee. That as by
the Bankrupt Statute the Lord Ordinary in vacation was vested
with the full powers of the Court, and as provision was made for
a direct appeal to the House of Lords from his judgment, it must
necessarily be final, and not subject to review by the Inner
House. On this point the Court consulted the Judges of. the
First Division, and thereafter, with the unanimous concurrence
of their Lordships, repelled- the objection to the competency;
but on the merits they unanimously refused the note, with ex-
penses.
*
The Court, while they were of opinion that the application to the Court
of Session was a competent procedure in the circuantances of the
case — that the parties fell within the description contained in the 32d
section of the Bankrupt Statute, and that special interrogatories pre-
* viously prepared could not be required, — also held that it would be
competent to any of the parties, when they appeared before the She*
riff, to plead any grounds which they conceived exempted them from
the liability to be examined, or to object to the particular questions
that might be put to them.
Retpondemts' AuthorM*9. — M'Uea, Dec. 4 17W ; Bell's Cases, p. 7* ; M'latosh,
&c. Dec. 14. 1825, (ante, Vol. IV. No. 225.)
J. Kennedy, W. S. — Macmillan and Grant, W. S, — Agents.
R. C. Bontine, Suspender. — D. qfF. Moncreiff—Speirs. jj0- 337,
J. Carrick, Respondent. — Scl^Gen. Hope — Donald.
Entail.— BUI passed to try the question, whether an heir in possession of an estate
under an entail was entitled to cut wood necessary to the comfort and amenity
of the mansion-house. >
The respondent Carrick, wpad-merchantat Balfron, purchased June 16. 1827.
from Graham of Gartmore a considerable extent of growing 2d Division.
Umber oa the entailed estate of Gartmore, and granted bills for Bill-Chamber.
the price. Graham shortly thereafter left the . country, having Ld. Cringletie.
executed a- deed of trust for behoof of his creditors ; and Carrick B*
81* CASES DECIDED IN THE
having commenced to cut down the wood purchased by him, Bon-
tine, the eldest son of Graham, and next heir of entail, presented
a bill of sdspension and interdict, on the ground that great part
of the wood sold by his father was unripe and not fit for cutting,
and that it included the old Umber round the family burial-place
and about the mansion-house, to the amenity and comfort of which
it was absolutely necessary. The Lord Ordinary remitted to a
land-surveyor to report whether any of the wood in question was
unfit for cutting, and the cutting of which would render the man-
sion-house altogether uncomfortable. The surveyor accordingly
returned a report, in whjch he pointed out a considerable number
of trees which in his opinion ought not to be cut, as being ne-
cessary to the comfort and amenity of the mansion-house.
The Lord Ordinary passed the bill as to the trees pointed out
by the surveyor, and refused it quoad ultra ; and the Court re-
fused a reclaiming note for Carrick, it being understood that cau-
tion was to be found by Bontine to the extent to which the bill
was passed.
Lord Glenlee. — On the understanding that the hill is passed only
on caution, I think it right that the question here raised should be
tried. It is a question of great difficulty and nicety how far an heir
of entail is limited in his powers of cutting wood ; but it certainly is
not so clear a point that he is under no limitation whatever as to
warrant the refusal of the bilL If the bill be refused, the damage
done will be irreparable; while, if passed, although Carrick be ulti-
mately found entitled to cut the wood, he will be secured from loss
in consequence of the delay by the caution to be found.
Lord Pitmilly concurred.
Lord Allow ay. — I hesitate very much as to passing this b3L I do
not say that it is impossible to bring such a case as might wamnt the
interference of the Court, though on general .principles I doubt ex-
ceedingly the power of the Court to interfere. The only case on
the point is that of Oxenford, and there the Court refused to prevent
the wood from being cut. The case of Ellon is no authority to the
contrary. I heard President Blair's speech in that case, and he pro-
ceeded entirely on this, that the Castle of Ellon was specially pro-
hibited in the entail from being sold. The question as to the powers
of liferenters does not at all apply, as an hen; of entail is in no respect
in a situation similar to a liferenter ; that of a minister resembles it
more nearly, and it has been found that a minister cannot be pre-
vented from cutting trees on the glebe.
Lord Justice-Clerk,— -We are not proposing to decide finally aay
point of law, but merely to pass a bill in older to try the
The greater part of the wood sold remains unfettered by the
diet, and the question is confined to that wood winch is said to be
COURT OF SESSION. SIS
Bceeesttry to the confort of the house as s permanent residence;
and as, on the one hand, the damage, if done, can never be repaired,
while, on the other, no risk is run, since caution is to be found, I
think it right that the question should be tried, whether an heir is
entitled to cut wood of that description* In the case of M'Kenzie,
although the matter was arranged by the parties, the views taken by
the Court show that this is not so extraordinary an attempt as is
supposed ; and although the case of Oxenford stands in. our books as
an authority, yet, to a certain extent at least, it was trenched on by
the decision in the case of Greenock. I admit that it is only in ex-
treme cases that the Court can interfere ; but when such do occur,
I see no principle to prevent their interference. It is not necessary,
however, to decide the point now, as we are only called on to pass
the bill, sufficient precaution being taken to prevent the respondent
suffering any loss.
Suspender'* Authorities — Lord Cathcart, (case of Greenock,) Jan, 31. 1755,
(15403) ; Gordon, (case of Ellon,) Jan. 24. 1811, (F. C.) ; M'Kenzie, March 6.
1824, (ante, Vol. II. No. 713) ; Dickson, Jan. 34. 1823, (ante, Vol. tl. No. 143) ;
Tait, Dec. 2. 1825, (ante, Vol. IV. No. 196.)
Respondent1 1 Authorities.— Sandford, p. 161 ; Hamilton v. Lady Oxenford, Feb. 16.
1755, (15408.)
i
Ker and Dickson, W. S. — W. Mbrcer, W. S. — Agents.
W. Baxter, Suspender.— Sandford— J. JIPNetU. No. 388.
R. Ewart, Charger.— Lothian.
Lawburrows.— Judgment adhering to an interlocutor of the June 16. 1827.
Lord Ordinary, which refused a bill of suspension of a charge on 2d Division.
letters of lawburrows regularly obtained, presented on an allega- Bill-Chamber.
tion that the lawburrows had been taken out maliciously. Ld. Mackenzie.
N. W. Robertson, S. S. C« — J. H. Lothian, W. S. — Agents.
G. Henderson and A. Scot, Suspenders. — Skene— Marshall. No. 389*
J. Ker and H. Johnston, Chargers. — Jameson.
Juratory Caution. — The agent for a bank having been charged under his bond for
a balance appearing on a stated account, and a bill of suspension of that charge
having been passed on juratory caution, the Court also passed on juratory cau-
tion a charge on one of the bilk which formed an item in that stated account.
Scot, the agent at Langholm for the Leith Bank, (of which June 16. 1827.
the chargers Ker and Johnston are managers,) having fallen 2d Dit|8i
greatly in arrear to the bank, they used inhibition against him, Bill-Chamber.
and charged him on bis bond of caution for the balance* as ap- Lord Medwyn.
F.
81* CASES DECIDED IN THE
peartag on a stated account Of this charge Soot praenled a
bill of suspension, which was passed by the First Smaon on
juratory caution. The bank then charged him and Henderson on
two bills, on which he was indorsee and Henderson drawer, drawn
by Henderson, and indorsed by Scot, both of whom presented
a bill of suspension without caution, — Henderson, on the ground
that he had received no notification of the dishonour by the ac-
ceptors,—and Scot, on the grounds on which the First Division
had passed the bill of suspension of the charge on that bond, and
that the bills formed items of the balance of the stated account
for which he was charged under his bond. The Lord Ordinary
passed the J)iU as to Henderson* but only on caution, and refused
it as to Scot in respect of no caution. They reclaimed, and Soot
contended, That the bank having tied up his funds by inhibition,
and obtained security over them by the juratory caution in the
suspension of the charge on the bond, could not demand full cau-
tion in this suspension, which was of a charge for an item really
included in the general charge under the bond. The Court ad-
hered as to Henderson, but as to Scot they remitted to pass on
juratory caution.
R. W. Niven, W. S—J. Bisset, S. S. C— Agents.
No. 390. ^' Cvnningham and Others. — Robertson.
Mrs. J. Thomson and Husband.— */^r«y— FT. BdL
Competing.
Pet and I*fereni-~C1a*#f.--CiTc\imBt*nct* in which a parent wat food to k*
liferenter, and the children fiart.
June 19. 1827. The late John Thomson was proprietor of four different sub-
lsr DmaioH. Jects *n Lanarkshire and Linlithgowshire ; and, with a tie* to
Lord Eldin. settling his affairs, he disponed each of tbem to his four child-
D* ren, and delivered the deeds. In particular he disponed the lands
of Tartravme to his daughter Jean Thomson, spouse ofBobett
Cunningham, under burden of his own liferent— of payment of one
fourth part of his debts— -of an annuity to his wife-^-andof stf**1
legacies.' In the month of June 1816 Jean Thomson and her
husband agreed to sell the subjects to one Veitch, and to #ve
him an unencumbered' title ; but Thomson having refund to dis-
charge the burdens, or to concur in the sale, Veitch brought an
action of damages, in which he obtained decree.
In the mean while Thomson had resolved to settle bb aftm
by a trust-deed, and with that view he obtained rec«wfl*flCC ■
the subjects which he had disponed to his children, wife *** a'
COURT OT SESSION. 815
>
oeptioto of Tattravine. Accordingly, oh the 80th of June 18M*
he executed a trust-deed, by which, inter alia* he disponed his
whole lends, including those of Tartiravine, to trustees. These
lands, he declared, were to be held by the trustees for his daughter
and her husband in liferent, for their liferent use allenarly, and
for the children of the marriage in fee.
To avoid being compelled to pay damages, Jean and her hus-
band applied to Thomson to concur in the sale, and agreed that
the price should be secured in such a way as he saw fit Accord-
ingly they wrote to him, that * if you comply with the disposition,
' the money will be lodged with any person you choose, until the
' bond be wrote, and sixty days registered. We are under the neces-
4 sity of disponing to him in termsof our promise, and it is certainly
* desirable that the whole should concur, and the money be proper-
4 ly secured in the way you wish it' To this he answered,-—4 After
* considering your letter of this date, and Robot Cunningham's,
' I agree to sign the disposition to Mr. Veitch, if the money is
4 secured in the way mentioned in my letter to you of the 19th,
* and in terms of my settlement, which Robert agrees to by his
4 letter of the 22d to you, and you to keep the disposition till the
4 bond is wrote.' The lands were in consequence sold and conr
veyed to Veitch, and the price was then lent upon an heritable
bond to a Mr. Gilchrist. This bond was taken payable to the
trustees, to be held by them for behoof * of the said John Thom-
4 son, Margaret Thomson his wife, Jean Thomson, and the heirs
4 of her body, and Robert Cunningham, according to their respect*
4 ive interests of fee and liferent, for the uses and purposes and
4 in manner expressed in a settlement executed by the said John
4 Thomson, bearing date 20th June last (1816,) or as the same
4 may be expressed in an additional trust to be executed by the
4 said John Thomson, Jean Thomson, and Robert Cunningham.'
Thereafter, on the 8th May 1818, John Thomson cancelled his
trust-deed of settlement by cutting his signature from every page
of it, and on the back of the last page be wrote the following do*
quet : — 4 As my whole heritable property, now and formerly, has
4 been settled by separate and absolute conveyances nearly in the
4 terms of the within deed and settlement, and as it is altogether
4 useless and void by this conveyance, I hereby declare that I
4 have torn my name from every page, and cancel this deed, that
4 it may create no dispute or confusion in my family in all time
4 coming.' On the 96th of June thereafter, he, together With
the trustees, executed a revocation and discbarge of the trust-
deed, with this declaration :— < Declaring, however, that these pre-
4 seats shall in no way prejudice any right or security standing in
818 CASES DECIDED IN THE
' cording to the true intent and meaning theteof , and at any time
'to associate or to substitute any person or persons to assift
' them in executing mid will, as they shall judge proper ;' and he
further declared, * that the said executors, the Rev. Patrick
' Bryce, and my brother the Rev. John Aitkin, shall each of
' them be entitled to the sum of i?100 sterling annually during
' their administration, and the said Mr. James Rodgers to the
* sum of ps. 8.1,000 annually during the said period, to com-
' mence from the day of my decease*' By the ordonnance here
referred to, it is required that the persons appointed executors
shall appear before the proper Court of the island, and declare their
acceptance of the office, and that if they fail to do so, the Court
shall take the management of the estate into their own handa.
Mr.' Aitkin afterwards came to England, where he died in
1815, leaving property to a large amount. A power of attor-
ney was then executed by the Rev. Mr. Bryce and the Rev. Mr.
Aitkin, the surviving executors, in favour of a Mr. Lang, who
was resident in the island, by which they constituted him their
' lawful .attorney for them and either of them, and in their or
* either of their names or name, or otherwise, to prove the said
( will of the said George Aitkin in any Court or Courts of the
' said island of St. Croix, or elsewhere in the West Indies, ac-
* cording to . the usual and accustomed manner in which wills are
' there proved and established, and for doing such act or acts as
c may be n&essafy, according to the forms and law* of the said
* island, for registering and enrolling the same will, in order and
* to the intent that full and complete dominion and command
* may be obtained over the estate and effects late of the said
c George Aitkin, situated, lying, and being in the said island of
* St. Croix, or any other island or islands, place or places, in
' the Weft Indies, and that the same may be regularly rfni dfliy
* obtained, recovered, received, and disposed of, and administered
4 according to the laws, usages, and customs of such place or
* places, and the true intent and meaning of the will of the said
< George Aitkin : And further, after probate shall be grafted or
' obtained as aforesaid, to act in and administer the affatas, estates,
< and effects late of the said George Aitkin in the said island of
( St. Croix, or elsewhere in the West Indies, in such &tid in the
' same manner, in all respects, as the said John Aitkin and
* Patrick Bryce, or either of them, could or might do' if person-
c ally present, and doing the same,9 &c. In cbnsequetice of this
authority, Mr. Lang applied for and obtained the sftttctiAtt tt the
Danish Government by an appointment m these tenbs:— t Agfte-
* ably to the power of attorney given yoir froiri the stfrtivifig
COURT OP SESSION. - 819
' outers in the dealing of tfte deceased George Aitkin, you are
' hereby appointed executor and dealing-master, administrator*
1 guardian, and cufttor in the said estate, as far as regards the
* property belonging to the deceased in the West Indies.' This
was followed by an order of the proper Court, whereby Mr.
Lang, in respect of the above appointment, was nominated exe-
cutor ct Mr. Aitkin.
In the mean while Mr. Bryce had, in the event of its being
found that the will did not extend to personal funds in England,
renounced the administration quoad them, and it was ultimately
settled that it did not. Thereafter having died, his daughter,
the pursuer, brought an action against the representatives of the
testator Mr. Aitkin, concluding for payment of the ^100 pro-
vided to him annually under the will. v
In defence they maintained,
1. That as, by the law of the island of St. Crbix, it was neces-
sary that the executors should be resident on the spot, and there
take the administration ; and as the provision, in the will was
qualified with the condition of Mr, Bryce acting as administra-
tor, and he had not done so in that island, and had renounced in
England, the pursuer could have no claim ; and,
2. That Mr. Lang was truly the nominee of the Court, and
therefore his actings could not be regarded as those of the pur-
suer's father.
To this it was answered, That it could never have been the
intention of the testator that the pursuer's father, who was a
clergyman in Scotland, should go to St. Croix, and there act as
administrator ; that in appointing an attorney, who had, in virtue
at the authority of Mr. Bryce, obtained himself nominated exe-
cutor, and acted as such, he had done every thing in his power
to comply with the will of the testator, and therefore the condi-
tion had been purified ; and that the renunciation to act as ad-
ministrator in England had been made only on the footing of the
will not being applicable to effects situated there.
The Court, on the report of the Lord Ordinary, decerned in
terms of the libel.
Lord Balgray. — It is perfectly plain that the testator could never
have supposed that the Scottish clergymen whom he appointed as
his executors should go personally and administer his affaire in St
Croix, and we must presume that he knew the law of the island
where he resided. He must therefore have intended that they
should act by means of an attorney. Accordingly they appointed
Mr* Lang, who acted in virtue of their authority. It is clear, there-
fore, that the legacy is due.
Lord Gillies. — I am entirely of the same opinion ; and besides it
890 CASES DECIDED IN THE
will be observed, that the testator hectares that die legacy «U1 be
due from and after the period of bis decease ; so that, according to
the plea of the defenders, it would not hare been due, unless the
. executors bad begun to act from that .moment, which ia absurd*
The other Judges concurred.
J. Scott, S. S. C— R. Ratthat, W. S.— Agente. '
No. 393* Lokd Elibaxk's Trustee. — FuHerton— Walker.
J. and T. Hamilton. — Cuningharne — Taii.
Competing. ,
June 19. 1827. MidtipUpotndmg^Interim Decree.-— In a muhiplepoinding
2d Division, raised in name of Thomas Hamilton in regard to the sum of
Ld. Cringletie. £4t559 being the rent of a farm held by him under Lord Eubank,
MK- claims were lodged for his Lordship's trustee, — tar James Hamil-
ton, writer to the signet, on an indefinite claim founded on arrest-
ments (objected to on various grounds) which had been used on
the' dependence of an action for delivery of certain articles, in
which action warrant of delivery had been obtained, — and for
Thomas Hamilton, the tenant, who pleaded certain vague claims
of retention. The Lord Ordinary having granted an interim de-
cree for «£300 in favour of Lord Elibank's trustee, the Court ad-
hered, with this variation, that the trustee should find caution to
repeat in the event of the other claimants substantiating any pre-
ferable claim.
R. Rot, W. S. — J. Hamilton, W. S. — Agents.
No. 391* Rev. D(. G. H. Baird, Suspender. — Sol. -Gen. Hope — JfunkuQL
Little's Tbustebs, Chargers. — Murray — Jameson.
Bill of Exchange — Sexennial Prescription — Oath. — Circumetnncee in whkfc,
.although a party admitted that he had granted a promissory note, which wat
prescribed, and that he had not paid it, yet, having denied that it was ever intended
to constitute a debt against him, was found not liable for the debt.
June 31. 1827. In 1808, the suspender, who then taught the logic class in
1st Division, the University of Edinburgh, having taken an interest ih William
Lord Eldin. Craig, one of the students, requested the late Mr. Little, writer to
s- the signet, to receive him as an apprentice. That gentleman hav-
ing done so, and the suspender having agreed to be Crag's cau-
tioner, indentures were executed, and on occasion of their being
signed by the suspender, Mr. Little, on the 19th of August 1808,
addressed to him this letter : — ' Mr. Craig brings his indentures
c to be signed by you. As they contain a discharge of the ap-
' prentice-fee of «£130, it is right that I should have a voucher
COURT OF SESSION. 881
' for that awn, and if agreeable to you, I shall take a joint pro-
c missory note from you and Mr. Craig, which can be paid at the
€ young gentleman's conveniency.' A promissory note was ac-
cordingly granted by the suspender and Craig of the above date.
The latter served a regular apprenticeship, and was admitted a
writer to the signet ; but he failed to pay the promissory note.
In 1818, and after the death of Mr. Little, his trustees raised
an action against the suspender for payment of the debt, in which
they obtained decree in absence, and having charged him upon
it, he brought a suspension, in which he contended that the bill
was prescribed, and that the debt could only be proved by his
oath.
After a considerable litigation, the charters made a reference to
the oath of the suspender, and he thereupon emitted a deposition,'
of which the material part was in these terms : — * Being shown a
promissory note, bearing to be dated 19th August 1808, promis-
ing to pay the sum of i?130 sterling to Mr. James Little, writer
to the signet, or order, for the contents of which promissory
note decree was pronounced against him by the Court of Session
on 24th January 1821 ; and being desired to say whether the
signature Geo. H. Baird, adhibited to the said note, is the sub-
scription of the deponent, and was adhibited by him ? depones
that it is his subscription. Interrogated if said promissory note
was granted to Mr. Little for the amount of the apprentice-fee
of William Craig, whose name appears at the note, and whether,
in the indenture of the said William Craig, to which the de-
ponent was cautioner for Craig, the said apprentice-fee was dis-
charged, and the said note at the same time delivered to the
said Mr. Little ? depones, that the note was granted for the
said apprentice-fee, but he does not, at this distance of time, re-
collect the date of its delivery. Depones, that it is most likely
that he was cautioner in the indenture for the due performance
of it, which he understands to mean the good behaviour of the
young man in the fulfilment of his duty as an apprentice. In-
terrogated if he ever paid the contents of the said note? de-
pones that he never did, because, when he signed that bill, it
was the deponent's perfect understanding that he was never to
be called . upon to make payment, and he did not consider it,
therefore, as constituting a debt against him : That Mr. Little,
in express terms, stated to the deponent that it was not to con-
stitute any debt against him, and that he (the deponent) was
neither to be understood to be liable for payment of it, nor
ever to be called upon for payment of it ; and the deponent
added, that he remembered distinctly Mr. Little Mating that
vol. v. 8 G
882
CASES DECIDED IN THE
' he would ia no circumstances, or at any future: period of timet
< be called upon for payment of a farthing of it.1 After git-
ing a history of the circumstances under which the note had
been granted, he deponed, « That he and Mr. Little had repeated
'conversations upon the subject, both before and after the date
« of the indenture, and that Mr. Little always said that the de-
* ponent's signing the promissory note for the apprentice-fee would
' have the effect of stimulating the young man's exertions to work
« it off; but Mr. Little never on any occasion gave the most
« distant hint that, in the event of Craig failing in those exer-
' tion% he the deponent should be called upon for payment of
c that note. Interrogated whether he knows whether Mr. Little
< ever got payment from Craig of this note in the manner before
' stated? depone?, that he never made any inquiry, as he did
' not conceive he had any thing to do with it. Depones, that
« he believes that Craig completed the period. of his indenture.'
The Lord Ordinary found the oath negative, and therefore
suspended tlje letters, and the Court adhered.
MacRitohies, Bayley, and Henderson, W. S.-*Murray andlnGias,
W. S. — Agents.
No. 396.
No. 395. C. Col&uhoun, Advocator.— A. M^NeUL
J. and A. Dunn, Respondents.— CRBics.
June 21. 1887. Damage*. — Action of damages by Colquhoun against Dunns
2d d before the Sheriff of Lanarkshire, for alleged malicious and iDe-
Ld. Cringletie. gal sequestration of furniture for the rent of a house. The She-
F. riff dismissed the action, the Lord Ordinary remitted sunpficiter
in an advocation, and the Court adhered.
C. Fisher,— J. Thor burn,— Agents.
T. Bruce, Pursuer. — FvUerton — Skeqe.
J, C. Bruce, Defender. — D. qfF. Monereiff—More.
Bti&l—JtesJMd9cata--s4<quietcencei—Jie\di-—l. — That an heir of eBtsii pro-
hibited from selling, but having power to do so in consequence of a defect ia
the resolutive clause, and who sold the estate, was bound to reinvest a sum
equivalent to the price in lands to be entailed in terms of the original ealaii.<*-
2.-!-That a judgment in a question tried with the heirs of entail, as to the validity
of a disposition to a purchaser, was not res judicata as to the heir's obligation Co
reinvest; and,— 3. — 'That a substitute heir was not barred from insisting on the fal~
fitment of that obligation by a delay of nearly thirty years from the date of the sale.
June 21. 1827. Thomas Bruce, one of the substitute heirs of er^taO of the
2d Division estate °f Tillicoultry, brought an action against James Carettirs
LriLMackenzie. Bruce, who, in consequence of the resolutive clause in the entail
M'K. not extending to the prohibition to sell, had sold the estate, con-
COURT OF SESSION. *2S
eluding to have him ordained to reinvest the prioe, or a sum equi*
valent to it, in other lands, to be taken to the same order of heirs,
and under the same conditions, as in the entail of Tillicoultry.
As this ease involved the same general question whieh occurred
in that of Ascpg * (which see,) the Court,, on its being reported
by the Lord Ordinary on informations, superseded consideration
of it till judgment should be given in that case. When the deci-
sion was pronounced in it, this case was resumed ; but the de-
fender, without again discussing the general question of the liar
bility of an bar under an entail such as the present and that of
Ascog to reinvest the price after selling the estate, confined him,
self to certain specialties which did not occur in the ease of Ascog,
and which he contended were sufficient to entitle, him to a judg-
ment of absolvitor. The special circumstances on which the der
lender founded were these.r—
He had succeeded to the estate of Tillicoultry in the your
1796 ; and for the purpose of having the question tried, whether
he was entitled to sell the estate notwithstanding the entail, he
sold and granted a disposition of certain parts of the estate tp a
friend, and then raised an action against the- substitute heirs of
entail, calling, among others, the present pursuer, and concluding
to have it found that he ( had undoubted right to make the said
4 aaje, and to execute the foresaid disposition ; and that be was,
' not prevented from so doing by the foresaid deed of entail, or
' by any of the titles on which he possesses the foresaid lands ;
< and that the said disposition executed by him is an effectual dis*
* position to all intents and purposes.9 This action was jeonjojned
with a suspension on the part of the purchaser ; and after consi-
derable litigation with the substitute heirs of entail, the Court
ultimately, ' in respect the resolutive clause in the entail does not
' apply to a sale of the estate,* found ' the disposition libelled on
' valid and effectual to the purchaser,9 and found the letters or-
derly proceeded. -f This judgment having been affirmed on ap-
peal, the defender proceeded to sell the estate of Tillicoultry in
different parcels, the last of wt^ich was. spld in 180$. JJe applied
part of the price to the payment pf his debts, and the balance to
the purchase of the estate of Balchri6tje. No proceedings were
adopted by the substitute heirs of entail to compel # re.invesUne.nt
pf the; price till 1822, when the defender having succeeded tp a
considerable sum of money by tjie death of ft brother in India, the
• Stewart «. FuUerton, &c. Feb. 83. 1897, (ante, Vol. V. No. 837.)
f See Brace v. Bruce, Jan. 15. 17M, (1*4390
3 G 2
8S4 CASES DECIDED1 IN THE
present action was rased. Under these circumstances, the de-
fender pleaded,
1. That the former action tried with the heirs of entail involved
the question not only of the power, but of the right to sell, and
that the judgment in that case, therefore, was res judicata here;
and,
2. That the 'price' which was now demanded to be reinvested
was spent, and no longer traceable ; and the demand therefore
resolved into a claim for damages, which must be considered as
barred by nearly thirty years acquiescence since the sale of the
lands.
To this it was answered,
1. That the question really tried in the former action was the
validity of the sale to the purchaser, and that the Court had
avoided finding that the defender had c right' to sell by not de-
cerning in terms of the libel, but merely finding the ' disposition
* valid and effectual to the purchaser ;** and,
2. That the price demanded to be reinvested was not the ipsa
corpora of the money paid for the estate, but the amount received
in lieu of it ; and that the claim was not at all of the nature of an
ordinary claim of damages, but for performance of an obligation
incumbent on the defender, in consequence of his violation of the
prohibition in the entail, and could not be cut off by mere acqui-
escence.
The Court repelled the defences proponed, and found ' that
' the defender is accountable for the price obtained for Tillicoul-
* try,' and remitted to the Lord Ordinary to proceed accordingly.
Lord Justice-Clerk.— It does not appear to me that there u any
thing in either of the specialties pleaded by the defender. 1. There
is no res judicata, by the decision in 1799, on the point here involved.
The summons in that case does not raise this question ; and at sD
events the judgment of the Court proceeds expressly on the defect
in the resolutive clause, and merely finds the disposition valid to the
purchaser. 2. 1 cannot see that the present claim can be barred by
delay or acquiescence, if not cut off by prescription ; and thai not
being the case, the pursuer is entitled to have the obligation which
lies on the defender to reinvest enforced.
Lords Glenlee and Pitmilly concurred.
Lord Alloway entertained a different opinion from the other Judges
1 on thti general question tried in the case of Ascog, and therefore
considered it unnecessary to enter on the specialties, as on that
general point he was of opinion that the defender should
J. Irving, W.S — J* Form an, W. S.— Agents.
COURT OF SESSION. 885
J. Miller and Others, Pursuers. — SoL-Gen. Hope—Rtdherfurd. No. 397.
G. Brown and Others^ jyefenders.'^Jameson—Matheson.
Lis alibi pendent.— An action having been raised and carried on in an Inferior
Court, and thereafter an action of the same nature haying been brought before
the Court of Sessior and the former advocated ob contingentiam, a defence of
lis alibi sustained.
Miller and others, after bringing an action before the Magi- June 22. 1887.
strates of Glasgow, in which considerable procedure had taken ltrJDivisioir.
place, raised another against .the same parties and for the same Lord Eldin.
debt before the Court of Session, and then brought an advocation H-
ob contingentiam. In defence it was maintained that the action
was excluded by lis alibi pendens. The Lord Ordinary and the
Court sustained this defence.
Gibson-Craigs and Wardlaw, W. S. — J. Macdonell, W. SL —
J. Gemmel, — Agents.
A. Torry and Others, Petitioners and Respondents.— Cockburn No. 398.
— Robertson.
J. Spence, Respondent and Petitioner. — D. ofF. Moncreffi—
D. Macfarlane.
Bankrupt — Sep$estrtUion<—A meeting of creditors ordered to receive the resigna-
tion of the trustee on a bankrupt estate. Observed, that a trustee is not entitled
to reject claims duly received, on making up his report as to the concurrence in
an offer of composition.
The estates of Torry having been sequestrated under the June 22. 1827.
Bankrupt -Act, and Spence appointed trustee, Torry offered a iBT division.
composition, which was agreed to by the creditors who were pre- S.
sent at the meeting. Thereafter Spence proceeded to investigate
their chums, some of which he rejected, and then reported that
the requisite concurrence had not been obtained. A meeting of
the creditors was- afterwards held, at which they resolved that it •
was inexpedient to have any further procedure under the seques-
tration, except to have the composition approved of, and the
trustee discharged, — recommended to the trustee to give to the
bankrupt the necessary certificate,-— and authorized the bankrupt
to apply to the Court for an approval of the composition. Against
this resolution Spence presented a petition and complaint, praying
to have it found null and void, and that two of the commissioners
were disqualified from acting, — to appoint a general meeting for
a new election of commissioners, and to receive his resignation.
896 CASES DECIDED IN THE
At the same time Tony, with concurrence of a large body of die
t*editors, also pttderifeiji a fjetitk* ft the Court, praying for the
appointment of a meetihg to remore Spende* ok* receive his resig-
nation, or otherwise to ordain him to grant the proper certificate,
and thereafter to approve of the ctfhiposition.
On the part of Tony and others it was maintained, That
Spence had acted illegally in rejecting the clairii of any of die
creditors who had been ranked, seeing that he had no power to
do so, except on the occasion of making a dividend, and that his
conduct in other respects had been such that he bught to be re-
moved. On the other hand Spence contended, That he was bound
to investigate the state of affairs before he could be obliged to
grant a certificate, and therefore he had acted legally ; but, as he
was willing to resign, he had no objection to a meeting bong
called for that purpose.
The Court granted the prayer of Spence's petition as to call-
ing a meeting for receiving his resignation, and appointed Tony's
petition to be intimated.
The Loan President observed, that Spence bad no power to reject
claims which had been received at this stage of the proceedings.
J. Prddie jun. W. S. — Campbell and BuRNSioa, W. S. — Ageats.
No. 399* Captain MacphJerson, Furtter.^Fulkrto7i~-Jemao*
Macpherson's Trustees, Defenders. — D. qfF. Mcmartiff—
H. J, Robertson.
Mt*itt£*-Ci»ifhn>*.--- A party having bound himself by hit x»ntract «C
to provide and secure to the heir of the marriage the whale estates »-J^t^ to
him at the time of his death ; and having; granted a trust-deed for payment of
debts, and creating a sinking fund, and for other purposes— Held that the deed
was ineffectual against the heir, except in relation to the payment of
Jane 98. 1827. By the contract of marriage between Colonel Duncan Mao-
ist Dmsiov. I*6*8011 of Cluny and Mrs. Catherine Cameron, executed m
Lord Newton. June 1798, he bound himself ' to provide and secure the whole
D- < heritable property belonging to him at his death to and in fis-
* vours of himself and the heirs-male of the marriage between him
' and the said Catherine Cameron/ whom failing* a aeries of sub-
stitutes, but that ' under the reserved power and faculty always
' to the said Colonel Duncan Macphefson* at. any time daring
* his fife, by a deed of entail, or other deed tufckr his band, to
( put the heirt hereby entitled to succeed to the aatd tasda and
COURT OF SESSION. 887
' estate tinder stich limitations and restrictions, with respect to
' alienating the same, or contracting debts thereupon, as he shall
* think just and reasonable, and to vary, alter, and enlarge the
* substitution in any manner he may think proper, provided the
1 same in no ways hurts or prejudges the heirs-male to be pro-
* created of the present marriage.' By this, deed he also provided
an annuity of £900 to his wife, and £4000 to the younger child*
ren of the marriage.
In 1801 he made an entail of the estate, and having contracted
considerable debts, he executed in 1804 a trust-disposition, whereby
he conveyed his estates to trustees, inter alia, for payment of his
debts, — of an increased annuity to his wife,— and an enlarged pn>*
vision to his family, and then he declared, that c after payment of
the said jointures, annuities, interest of debts, and expense of
management, the said trustees are hereby directed to apply &ii
annual sinking fund, to the* amount of i?500 sterling money, if
so mudi remain, towards payment and extinction of the principal
or capital sums due by me ; and after deduction thereof, and of
the said jointures, annuities, interests of debts, and expense of
management, to make payment of the free residue to the heir of
entail who would be entitled to assume the possession of my
said estate, if this trust-deed did not exist ; nor shall it be com*
petent to the said heir to inquire into or interfere With the ma-
nagement, nor to quarrel or impugn the accounts of my said
trustees, nor to object to any article for which they shall take
credit, upon pretence of enlarging the said annual free residue T
but he shall be obliged to accept of their accounts, or of any
abstract showing the free residue, as the same shall be attested
by the acting trustee or trustees for the time, or their qiiorum,
without any inquiry or ground of objection whatever, other thari
what may arise from the adjustment and ascertainment of their
accounts by an accountant of character, in manner hereafter
directed.9 And further, he ' provided and declared, that the
present trust shall subsist until the whole debts chargeable upon
the said estate, or owing by me, are paid and cleared off, so that
my said estate becomes perfectly frfete and disencumbered, and
that the h£ir entitled to succeed to it attains the age of twenty-
five years complete; and, upon the tehhitiation of the said trust,
the said trustees shall be obliged to yield the possession of my
said estate to the heir of entail, who, if there was no trust-dis-
position, would be entitled to assume the possession of my said
estate, and to denude thereof in favour of the same series of
heirs, and under the same conditions, provision*, and declara-
tions, clauses irritant and resolutive, that awl contained in the
898 CASES DECIDED IN THE
< said deed of entail." In virtue of this deed, the trustees were
duly infeft.
Colonel Macpherson died in August 1817, leaving a large
family, of whom the pursuer was the eldest son, and debts and
provisions to an extent which, together with the sinking fund of
£500 per annum, deprived him entirely of any revenue from the
estate. He afterwards brought an action of reduction of the
trust-deed, upon the ground that it was ultra vires of his father,
in respect of the obligations in the contract of marriage ; and be
therefore concluded ' that the same ought to be reduced, saving and
* excepting in so far as the said trust-deed of 80th August 1804
* may be held by pur said Lords to be a security for payment of
4 the bond fide and onerousdebts owing by the deceased Colonel
' Duncan Macpherson, the granter, at the time of his death, and
4 for payment of the subsisting family provisions, or for payment
* of other debts and obligations contracted by the said trustees,
* for the purpose of discharging the debts outstanding, or exi-
4 gible from the said Colonel Duncan Macpherson himself at the
4 time of his death,— and also saving and excepting the heritable
4 bonds, and the bonds and dispositions in security, or personal
4 bonds, granted by the said trustees to third parties, in security
4 of the repayment of the money borrowed by the trustees, and
4 applied for the purposes foresaid, — and also saving and except-
4 ing the instruments of sasine following on the said heritable
4 bonds, and bonds and dispositions in security, and all deeds of
4 transmission or assignation of the said heritable debts and se-
* curities.'
And he further concluded, < That it should be declared that
' the pursuer is entitled to succeed to the foresaid lands and
' estate of Cluny and others contained in the foresaid marriage*
' contract and trust-deed, free of all limitations, conditions, and
4 restrictions, in so far as imposed by the trust-deed, excepting
* always as aforesaid ; and that he is entitled to the just and true
4 rents, produce, and profits thereof from and after the tens of
' Martinmas 1817, being the first term after the death of the arid
' .Colonel Macpherson ;' or otherwise, in case the trusudeed should
not be reduced in toto, then that the trustees should be ordained to
convey the estates to him ' under burden of the debts bona fide
4 contracted by the trustees to third parties, and still outstanding.'
In support of this action it was maintained, That die pursuer
stood in a double capacity in relation to his father, — that he was
not merely his heir, but was his creditor ;— that although he was
.liable to be postponed to all the onerous creditors, yet it was not
within the power of his father gratuitously to deprive him of any
COURT OF SESSION. 8C9
part of the estate ; and that although he might competently object
to the increased provisions to the family, and to debts contracted
by the trustees, yet he merely insisted that they ought to convey
the estates to him without, the burden of the sinking fund, or any
other limitations not warranted by the marriage-contract.
In defence the trustees contended,
1. That the trust-deed was not ultra vires of Colonel Macpher-
son, in so far as it put them in possession of the estate for the be*,
nefit of his creditors, and that they were entitled to retain that
possession until the debts and burdens were paid ; and,
2. That neither was it ultra vires, in so far as it directed them
to provide for payment of the debts, by annually appropriating
the surplus of the rents towards extinction of these debts. .
The Court, on the report of the Lord Ordinary, pronounced
this interlocutor :— * Find, in respect of the marriage-contract of
the late Colonel Duncan Macpherson, dated 12th June 1796,
that the trust-deed in question thereafter executed by him was
ultra vires of the granter, and cannot be sustained to any effect
whatever, except as a security for payment of bond fide and
onerous debts owing by the said Colonel Duncan Macpherson
at the time of his death, and for payment of reasonable, and
suitable provisions to his widow and younger children, and also
for payment of the real and personal debts that have been con-
tracted by the said trustees, and applied in discharging the
bond fide and onerous debts which were outstanding or exigible
from the said Colonel Duncan Macpherson at the time of his
death : Find that the trustees had full power by the said trust-
deed to borrow money for the said purposes, and to grant herit-
able bonds, and bonds and dispositions in security, and personal
bonds therefor : Find that the heritable bonds, and the bonds
and dispositions in security, and personal bonds granted by the
said trustees to third parties, in security of the repayment of
the money borrowed by the trustees, are valid and effectual, with
all that has followed or may follow thereon : Find that the cur-
rent leases granted by. the trustees to third parties of the lands
contained in said trust-deed, are not challenged by the pursuer,
and that the trustees are to be relieved thereof: Find that
neither the subsisting provisions in favour of the widow or
younger children are challenged by the pursuer, and that the
same are therefore to be held as reasonable and suitable, and to
have effect accordingly : Find that the pursuer is entitled to
succeed to the lands and heritages contained in the said mar-
riage-contract and trust-deed, free of all limitations, conditions,
and restrictions, in so far as imposed by the said trust-deed, but
880 CASES DECIDED IN THE
always with and under the real burden of the existing debts
contracted and secured as aforesaid by the trustees, and of the
subsisting family provisions; and that the pursuer is entitled to
the just and true rents, produce, and profits of the said lands
and heritages contained in said trust-deed, from and after the
term of Martinmas 1817, being the first term after the death of
the said Colonel Duncan Macpherson, and in time coming,
and to have the said bygone rents, produce, and profits ac-
counted for to him accordingly : Ordain the said trustees forth-;
with to dispone, convey, and make over the said haill lands end
heritages contained in the said marriage-contract and trust-deed
to the pursuer, and to the other heirs and members of tailzie
called by the 'deed of entail executed by the said Colonel
Duncan Macphefsori, and under the conditions, provisions, and
declarations, clauses prohibitory, irritant, and resolutive, con-
tained in the said deed of entail ; but always with and under the
real burden of the said debts contracted by the said trustees td
third parties, and secured as aforesaid, so far as the same may
be yet unpaid; and also under the burden of the subsisting
family provisions, as well as of relief to the trustees of all bonfi
fide and onerous debts and obligations come under and con^
tracted to third parties by them as trustees, the said conveyance
to be a burden upon the said deed of entail ; reserving always to
the pursuer all competent right of recourse against the separate
estate of the said deceased Colonel Duncan Macpherson, if he
left any, in order to obtain relief for such of the said debts as
shall, by the conveyance to be executed by the trustees mm afore-
said in favour of the pursuer, be enumerated as encumbrances
affecting the lands and heritages contracted as aforesaid, and
also reserving to the pursuer all competent right to insist in ail
action for the purpose of having it found and declared that he
is entitled to sell such parts of the said lands and heritages mm
may be necessary for the discharge of the debts and obligations
brought against the contracted estate, and interest due and «ns-
ing thereon ; and reserving to all concerned all defences compe^
tent against such action, as accords; and decern and declare ac-
cordingly.'
J. Aknott, W. S<— Mackenzie sod Innes, W. S^-Agaita
COURT OF SESSION. 881
J. BadwH* Advo^LioX'—Jifre^^RobettSon. No. 400.
T. ahd A. Olivee, Re«poiident^--Cockburn-^Graham Bdl*
Proof— Reparation. — Held that warranto are the only proper evidence of alleged
oppressive judicial proceedings and imprisonment.
Brown raised an action of damages before the Sheriff of Host June 89. 1837.
burgbshire, on account of certain defamatory words alleged to 2d Division.
have been used regarding him on several occasions by Olivers^ Ld. Cringletie.
the respondents, and of certain alleged illegal and oppressive pro- B.
ceedings on their part in obtaining warrants against hikn from
Justices of the Peace, and thereon apprehending him* The
Sheriff allowed a proof, in which evidence was led as to the de-
famation ; but as to the alleged oppressive proceedings before the
Justices of the Peace, the warrants said to have been obtained
were not produced. The Sheriff having assoilzied Olivers, Browil
brought an advocation, in which the Lord Ordinary pronounced
an interlocutor as directed by the late Judicature Act, containing
special findings as to the facts proved by the evidence In the In-
ferior Court, and with these findings his Lordship remitted sim-
pliciter. On a reclaiming note, however, by Brown, the Court
took a different view of the import of the evidence, except as to
the alleged oppressive proceedings before the Justices of the
Peace, as to which they concurred with the Lord Ordinary that
the warrants were the only proper evidence ; and therefore, white
they found that there was no proof of oppression, they likewise
found that the defamation was proved, and subjected Olivers in
i?10 of damages, with expenses, amounting, when modified, to
£13S.
J. W. Ness,— Low and Rutherford, W. S.*— Agents,
Professor Coupee and Others, Pursuers.— *SoL~Gen. Hope — No. 401.
Robertson*
Marquis of Bute, Defender.— Jeffrey — FuUerion.
Proving the Tenor— Proof.— -Circumstances in which, by content of parties, the
proving of the tenor of a bond was dispensed with, and in which the Court found
its import sufficiently instructed by written documents recovered under a dili-
gence, and parole proof taken on commission.
Ik 181*7 an action was raised in name of the late Rev. James June 92. 1827.
Couper, (then cognosced as insane, and since dead,) and of his fc — ^
father, Professor Couper, as his tutor, Against the Marquis of Ld. Cringletie.
Bute, concluding to have his Lordship ordained to deliver up F.
a bond of annuity for £ 100 said to have been granted by the
832 CASES DECIDED IN THE
late Marquis (grandfather of the defender) to Mr. James Couper,
and by him delivered up to the late Marquis while incapable, from
insanity, of acting for himself ;. and further concluding that his
Lordship should be ordained to make payment of the annuity
during the lifetime of Mr. James Couper. Against this action it
was pleaded in defence, That the bond, which appeared to be no
longer in existence, must necessarily have been conditional, and
dependent on Mr. Couper not being otherwise provided for by
the late Marquis ; and that having received two small livings in
Wales from his Lordship, the restoring the bond was an act of
rational administration which could not be challenged.
The case having come before Lord Reston as Ordinary, his
Lordship, after ordering condescendences, appointed them to be
revised, ' with a view to a remit to the Jury Court/ Against the
interlocutor making this appointment the Marquis of Bute gave
in a representation, which, on the death of Lord Reston, came
before Lord Cringletie, who sisted the cause till the pursuers
should bring a process of proving the tenor of the bond. His
Lordship's interlocutor having been brought under review by the
pursuers, the Inner House recalled it, and remitted to him the
reclaiming petition, with instructions to hear parties further, and
grant diligences to both parties for recovering the bond, and all
correspondence relative thereto. Under this diligence several
letters relating to the arrangements between Mr. Couper and the
late Marquis were recovered, but no. trace appeared of the bond
itself, which was supposed to have been destroyed by the Marquis
when returned by Mr. Couper. The Lord Ordinary, on consider-
ing the written documents produced, refused the petition, and ad-
hered to his former interlocutor, sisting process till a proving of
the tenor should be brought. The pursuers thereupon again
reclaimed to the Court ; and Mr. James Couper having shortly
thereafter died, Professor Couper and others sisted themselves
parties as his executors. On advising the reclaiming petition, the
Court, ' in respect that the parties, by their counsel, are agreed
4 to dispense with a separate and formal action of proving the
'.tenor of the bond in question, and that the pursuers shall. be
' allowed to bring into Court a supplementary summons without
< abiding the ordinary inducise, while it shall be competent to the
' defender to maintain the whole defences and pleas against the
.' conclusions of both actions which would be competent to him in
' an action of proving the tenor," recalled the Lord Ordinary's
interlocutor, and remitted to his Lordship to proceed, as heAcold
see cause.
. In consequence, of the permission contained in this interlocutor,
COURT OF SESSION. 888
the pursuers* raised a supplementary summons to supply the de-
fect in the first, arising from the bond being no longer in exist-
ence, and concluding to have it declared that the late Marquis of
Bute bound himself to pay to Mr. Couper an annuity of «£100 a
year during his life, and that the obligation was valid and sub-
sisting till bis death; and to have the defender, as representing the*
late Marquis, ordained to pay the same during the several years
in which it had remained unpaid down to the period of Mr.
Coupefs death. This summons having been conjoined with the
depending action, the Lord Ordinary allowed a proof, before
answer, of the contents of the bond, and thereafter reported the
cause on minutes to the Court. On advising these minutes, the
Court pronounced an interlocutor, finding ' that the question as
* to the terms and conditions of the bond should, before further
* procedure, be determined by the Court ;' and ordered a State
of the evidence on this point to be prepared at the sight of parties.
From this State, and the admissions of the parties, the following
circumstances appeared. —
Mr. James Couper, son of Dr. Couper, one of the Professors
in the University of Glasgow, was, prior to his mental derange-
ment, a young man of excellent abilities, and very amiable dis-
positions. While pursuing his studies at the university, in the
year 1809, with a view to the Scotch church, he was engaged
by the late Marquis of Bute to superintend, for a few months,'
the education of his Lordship's grandson. The Marquis hav-
ing been greatly pleased with Mr. Couper, and being desirous'
to obtain his services as tutor to bis youngest son, . wrote to
him shortly afterwards in these terms : — * Situated as I happen
* to be, without entering into further reasoning, I must observe
' to you the impossibility of holding out other prospects of assist-'
* ance than what is personal to myself. Should a vacancy take
* place, for example, in the kirk of Rothsay, and you competent
* to the presentation, I pledge my word to bestow it in your
* favour. In the mean time, did it suit your views and conve-
' nience to live in my house* I shall gladly receive you, offering
c in such case a salary of ,£100, and to add i?10 more to defray
1 the cost of washing ; — such arrangement to date from the mo-
( ment of your joining me, — say beginning of November next,
* after your examination. 'Your journey to be paid for by me,
' likewise those you may be called upon to make for the same
' purpose. , This salary of iPlOO I propose continuing until you
' get the living of Rothsay, or that you are able to obtain a better
' provision.' Mr. Couper at this tiine possessed the permanent
situation of keeper of the Hunterian Museum of Glasgow, ' to
F '
834 CASES DECIDED IN THE
which is attached a salary of J>65 a year ; and being hopeless of
attaining such a proficiency in the Gaelic language (in which one
<rf the services of each day is performed at Rothsay) as would en-
able him properly to fulfil the duties of the charge as pastor of
the parish, he wrote to Lord Bute, stating this incapacity to ac-
cept the living of Rothsay as likely to effect some alteration in his
Lordship's plans, qnd expressing himself so as to impress Lord
Bute with the belief that he entertained an unwillingness to enter
his family.
To this letter the Marquis wrote in answer: — « Truly iorry
« do I feel in learning your determination in renouncing the kirk
* of Rothsay. The prospect of presenting you to a church likely
'to become a more profitable situation than the generality in
''Scotland, was a justification to my mind for asking you to gWe
' up the certainty ypu now enjoy as keeper of the museum, espe-
' cially as I could make it good myself in the interim. That
' prospect no longer in view, it would to the last degree prove
' improper in me to consent to or allow such a sacrifice of your in-,
' terests ; particularly, indeed, since my absolute renunciation of
' all political connexion puts it completely out of my power to
' render you, or any one, serviced And his Lordship, in 4 subse-
quent letter, expressed himself to a similar effect: — c As long as I
c had it in my power to hold out to you a certainty of provision,
' which the kirk tif Rothsay no doubt afforded, I felt no diflfculty
' in agreeing to your giving up the rituaupn of keeper of the
' museum, because I could in the interim make it good- At present,
' however, that you declare the impossibility of qualjfyipg yom~
' self for the said church, the case becomes widely different- A? \
' expressed in my last, how could I conscientiously permit yon
' to join me, whep you have no prospects of preferment,-r-<*t best
' a mere chance, and that you must per force, in adopting such a
' plan, relinquish the little yoju now enjoy ?* His Lordship, how-
ever, added: — < In other respects, my senpments tpwaxds you re-
' main the same, and I with pleasure confirm the proposal com*
* tained in my letter to ypu from Mountatuart of the $8d Jjine
* last, though J do not think your father ought to let you accfpt
' it,' Mr. Cpuper accordingly finally declined the proposal of
gping ipto the Marquis's family by a letter dated %Ut S^ptejnber
1809. The Mgrquis about this time returned to Eqghind, from
whence he shortly afterwards wrote tq Mr. Cpuper, expressing
bU regret that it did not suit Afo Cpuper1? views to go into to*
family, but at the same tjpne inviting hun tp pay big JtmUyp
and Lady Bute a visit for a few months.. Thin invitatign w*s
accepted by Mr, Couper, who set cot from (Scotland in the month
L
COURT OF SESSION. 335
q{ November; but, immediately before be left Glasgow, his father
received from Lord Bute the following letter : — ' Having reflect*
* ed upon the best means of securing to your son James a settled
' permanency, should he. incline to attach himself to my house, I
' beg to state my readiness to execute a bond of annuity in his
' favour pf i?100, payable out of my landed property. Should this
' arrangement meet your approbation, it might perhaps preclude
' the necessity of so immediately attending to the preparation for
' the church, which could be carried on in any leisure moment*1
It appealed that at this time Lord Bute had formed a resolution
to go abroad, in consequence of the ill health of Lady Bute ;
and on Mr. Couper's arrival in London* it was proposed that he
should accompany them* This he was prevailed on to consent
to, and a bond of annuity of «£100 was immediately executed by
the Marquis in his favour. This bond was seen in London by
Dr. Thomson, who had been applied to by Mr. Coutts, Lord
Bute's banker, to prevail on Mr. Couper to accompany his Lord-
ship abroad, and he deponed that he had read the bond, and that
it was ' absolute and unconditional for 4100 a year to Mr. Cou-
* per, payable out of the Marquis's Scotch estates ;' and further,
that he ' did not recollect if the bond expressed that the annuity
' was for life ; but if he did say it was, this would be according
' to his conscience.1 The boqd was afterwards transmitted to
Professor Couper at Glasgow, and while in his hands it w*s
seen by Professor Meikleham of that university* who in like
manner deponed that by it ' the late Marquis of Bute promised,
( or bound himself to pay the late Mr. James Couper i?100 ster-
c ling yearly for life.' — ( That there was no condition whatever
' in the paper, and the deponent was particularly struck at that ;'
and ' that the paper bore that the annuity was to be paid out
< of the first and readiest of the Marquis's estates in Scotland.'
This bond having been granted, Mr. Couper went abroad with
the Marquis, and continued in his family for some years. On
their return to England, he took orders in the English church,
and was presented by his Lordship with twp small livings in
Woles. On leaving Lord Bute's family in autumn 1818, he en-
tered himself as a gentleman commoner at Cambridge. He still
continued to draw the -annuity after his appointment to the Welsh
livings ; but in the beginning of 1813 he left the, university, and
wrote to his father to send him the Marquis's bond. This re-
quest his father complied with, and Mr. Couper, it appears, im-
mediately transmitted it to Lord Bute in a letter which could
not be found among his Lordship's papers ; but, of dpte 6th Fe-
bruary 1813, his Lordship had addressed a note to Messrs. Coutts
836 CASES DECIDED IN THE
and Company (who had previously been directed to pay the an-
nuity on Mr. Couper's order) in these terms :— 4 I have to re-
' quest you that the annuity hitherto paid to the Rev. James
* Couper of £ 100 may be discontinued, that matter being other-
* wise settled/ On the ££d of February Mr. Couper came to
Lord Bute's* and conducted himself so as to leave no doubt of
his derangement; and his Lordship accordingly coimnumcated
the matter to his relations. Mr. Couper afterwards recovered so
much towards the end of the year as to be allowed to return to his
livings; but in 1815 it became necessary to convey him to Scot-
land, where he was cognosced the following year by a verdict
which found that he was insane, and had been so from the 25th
of December 1812. Prior to his son being cognosced, Professor
Couper (though he had been made aware by bis son that the bond
had been returned to Lord Bute) had made no application to Ins
Lordship, on the ground of his son having been in a state of in-
sanity when he returned it ; but, on Mr. Couper being cognosced,
he applied to the present defender (the Marquis being now dead}
for payment of the arrears of the bond, and this having been
refused, he raised this action, in which the procedure above nar-
rated took place. *
The Court, after a hearing in presence on the import of the
evidence regarding the contents of the bond, found that it was an
unconditional bond of annuity for JP100 a year in favour of the
late Mr. Couper during his life; and, quoad ultra, remitted the
case to the Jury Court.
J. G. Hopkirk, W. S. — T. Ferguson, W. & — Agent*.
No. 402. Sir B* Dunbar and G. Dunnet.— Jfaftfoi^/vory.
D. Clyne, S. S. C. — Cockburn — BoswelL
Multiplepoinding — Expense* — Arrestment. — A party in whose hands
had been executed, having thereafter accepted bills for the fund so arrested n
favour of the common debtor, who indorsed them to a third party aware «tf -tir
arrestment ; and the arrestee having raised a multiplepoinding, and the « until
having been preferred— Held, — 1. — That the arrestee was not entitled to the ex-
penses of raising the multiplepoinding ;— and,— 2. — That both he and the indor-
see of the bills were liable to the arrester in expenses.
June 43. 1827- Clyne, who was creditor of one Fraser, executed an arrest-
Ibt DrrlTioir. meDt> on the 10th of May 1825> to the extent of £500, in thejbands
Lord Eidin. of Sir Benjamin Dunbar, and thereafter be instituted h*4kibt
- s. against Fraser to the amount of £460. On the 17tsTO3ane
COURT OP SESSION. 887
Sir Benjamin Dunbar accepted two bills in favour of Fraser, the
one for £150, and the other for £2Q, payable four months after
date.' In December of that year Clyne raised a process of forth-
coming against Sir Benjamin, to which he called Dunnet, an
alleged creditor of Fraser, as a party. Thereafter, on the 17th
of that month, Fraser indorsed the two bills to Dunnet, and there-
upon a process of muhiplepoinding was brought by Sir Benjamin,
who also raised a suspension of a threatened charge on the bills.
The Lord Ordinary preferred Clyne to the fund in medio, under
deduction of the expenses .incurred by Sir Benjamin, but found
no expenses due to Clyne. The latter thereupon reclaimed, and
contended, That as Sir Benjamin had granted the bills subsequent
to and in breach of the arrestment ; and as Dunnet must have
been aware of its existence prior to the bills being indorsed to
Mm ; they ought to be found liable to him in expenses.
The Court accordingly, on these grounds, altered the interlo-
cutor, found Sir Benjamin entitled to no expenses as raiser, and
decerned against both him and Dunnet for those incurred by
Clyne.
J. Henderson, W.S. — A. W. Goldie, W. S. — D. Clyne, S. S. C. — .
Agents.
J. Dallas, Pursuer.— A, ATNeiU. No. 403.
R. Fraser, Defender. — Lumsden.
Proce88—*RedMQtivn. — Certification contra non producta having once pasted, the
Lord Ordinary can pronounce no order inconsistent with it till the certification
be recalled;
In a process of reduction of a decree of a Sheriff Court, in June 33. 1827.
which the decree itself, but not the grounds and warrants, had 2d Dmaioir#
been produced, the Lord Ordinary granted certification contra Lor<j Newton,
non producta. Thereafter, on a motion at the bar by the de- P.
fender, his Lordship granted warrant to transmit the grounds
and warrants of the decree ; but the pursuer having reclaimed,
the Court recalled his Lordship's interlocutor, reserving to the
defender to apply to be reponed against the certification.
Lord Glenlee. — I think the certification should not have been granted,
and perhaps the Lord Ordinary might have recalled it as incompe-
tently pronounced ; but while it subsists, he cannot pronounce any
contrary order.
The other Judges concurred.
J. Turner, W. S*— S. F. Mackintosh, W. S. — Agents.
vol. v, Sh
888 CASES DECIDED IN THE
*
No. 404. Dr. Claud Cubbie, Yursuer.— Jeffrey— More.
P. Jaebink and Mis* M. Cubbie, Defenders— D. qfF.
Moncreiff—Forayth — Cockbum.
Cognition.— Held, that although It was found, by a verdict of Insanity, that ffe
party had had a lucid Interval on a certain day within the period during which
the insanity subsisted, yet as a reduction had been brought of that part of the
verdict, it was no bar to an action of reduction, on the ground of insanity, of a
deed executed on that day.
June 83. 1887. Ths pursuer. Dr. Carrie, having taken out a brieve for eognotv
*p Drvisiow. tiflg I"9 mother, the late Mrs. Margaret Baldwin cor Jardine, the
Lord Newton, cognition waft proceeded with before the Sheriff of Lanarkshire, and
B. Dr. Currie on the one hand, and Mrs. Jardine's husband on the
1 other, appeared by counsel before the inquest. Evidence hav-
ing been led on both sides, the Jury returned a verdict cognoscing
Mr&v Jardine, and finding that she had been insane since the end
of March 1817 ; but also finding, by a plurality of voces, ' that
* the insanity had been interrupted by occasional lucid intervals,
* and particularly that there was such a lucid interval on the tA
' day of June 1818 years.' On the day thus excepted in the ver-
dict Mrs. Jardine had executed a deed of settlement in favour
of the defenders, her husband Mr. Jardine, and her daughter
Miss Currie, to the prejudice of Dr. Currie, the pursuer, her eldest
son and heir.
For the purpose of setting aside this deed, Dr. Currie raised
the present action of reduction, on the ground that Mrs. Jardine
was insane at the period of its execution ; and he also brought a
reduction of the verdict of the Jury, so far as it found a lucid in-
terval, on the grounds that such a finding by an inquest of cogni-
tion was incompetent, and that it was contrary to the evidence
adduced.
Against these actions it was pleaded in defence, That the find-
ing of a Jury was a competent answer to the query in the brieve,
Quamdiu sustinuit istam fatuitatem, and was completely sup-
ported by the evidence; and at all events, that Until it wae actually
reduced, it was a bar to the reduction of die deed of Sd June 1838,
on an allegation of insanity contrary to the finding of the Jury.
To this it was answered, That, supposing the verdict to stand,
it still was no bar to the reduction of the deed, because the find-
ing of sanity by a Jury of cognition was in no way exclusive of
the proof of insanity, and because, even if Mrs. Jardine bad a
lucid interval on the 2d of June, that interval might have elapsed,
or might not have commenced at the time of -the day wfan the
deed was executed ; but besides, that a reduction of the verdict
COURT OF SESSION. 899
r •
having also been raised, it was proper that both causes should go
together to. a Jury.
The Lord Ordinary found that ' the verdict of the Jury fornta
* no bar to remitting the case to the Jury Court,' and therefore
conjoined the two processes, with a view to a remit ; and the de-
fenders having reclaimed against his Lordship's interlocutor, the
Court, after ordering Cases, unanimously refused the reclaiming
note, and remitted the cause to the Jury Court. „
W. and A. G. Ellis, W. S.— D. Bbown, W, &p— Agents.
J. Pollock, Pursuer.— -Sol.-Gen. Hope— -Jameson— -Shaw. No. 405.
J. Kibkwood, Defender.— -2?. qfF. Moncreiff—Greenshields
Hunter.
This was a complicated question of accounting, in which the June'ae. 1897.
Lords Ordinary assoilzied the defender ; but the Court altered, lerDiyiuo*.
and decerned against him. Lords Allows?
and Eldin.
W. Patrick, W. S— Tod and Wright, W. 8—- Agents. 8-
Marquis of Stafford and Others, Pursuers.— Cocktntrn. No. 406.
M. Mackenzie, Defender.-* Sol-Gen. Hope — Robertson.
Pnc94*—TitU to Plrtue— Asorf.— Held/— 1«— That after a caute has been pre-
pared, (but the record not closed,) and remitted to the Jury Court, and re- v
transmitted by that Court to the Court of Session to hear parties on points of
law, it is not competent to order the case to be of new prepared ;— and,— 2.—
That an ex facie regular decree of the Quarter Sessions, ordering a road to '
be shut up, must be set aside before the party against whom that decree has
been pronounced is entitled to insist in a declarator of right to the road.
The Marquis of Stafford, and a great number of other per- Junc *&• 1W?.
sons resident in various parts of the north of Scotland and in En- 1st Division.
gland, having brought an action of declarator against Mackenzie Lord Eldin.
of Ardross to have it found that they were entitled to the use t>f s Da
a road through his property for driving cattle, the Lord Ordi-
nary, after ordering a condescendence and answers, which were
lodged, remitted the case to the Jury Court. By that Court
the parties were ordered to revise their condesceridence and
answers, and to lodge notes of pleas, which was accordingly
done. Various defences were there urged by the defender ; and
among others, he maintained that, as the road had been or*
dered to be, shut up by a final judgment of the Quarter Sea*
sions, the pursuers were not entitled to insist in a declarator of
right to it The Jury Court then ordered that the process ( be
* retransmitted to the Court of Session to decide the questions
3h2
840 CASES DECIDED IN THE
' of law and relevancy stated in the pleas of law lodged by the.
* defender." The record had not been closed ; and when the case
returned to the Lord Ordinary, he appointed the parties to revise
their papers.' Against this order Mackenzie reclaimed, and con-
tended that as the case had been retransmitted from the Jury
Court for the special purpose of hearing parties on the points of
law, it was incompetent to ordain them to prepare the case of new.
The Court, being of this opinion, recalled the order, and ap-
pointed parties to be heard on the merits. At the hearing two
points were rested on by the defender, —
1. That as almost all the pursuers resided at a great distance
from the road, some of them in remote parts of Scotland, and
others in England, they had no title or interest to pursue the ac-
tion; and,
St. That the final decree of the Quarter Sessions deprived tbem
of a title to insist until it was set aside.
To this it was answered,
1. That the pursuers being either heritors, residenters, or ex-
tensive cattle-dealers in the neighbourhood of the road, or who
had been accustomed to make use of it, had both a title and in-
terest to insist on the roacl being kept open ; and,
2. That the decree of the Quarter Sessions had been obtained
in the most irregular and illegal manner.
The Court, withoufdeciding the first point, held that whether
the judgment of the Quarter Sessions was well founded or not,
or had been regularly or irregularly obtained, still, as it was ex
facie a good judgment, it must be set aside before any further
procedure could take place in this case, and therefore asted pro-
cess till a reduction of that judgment should be brought.
Horne and Ross, W. S. — H. Macqueen, W, S. — Agents.
No, 407. D*- Duncan, Pursuer. — A. Wood.
Hugo Aenott, Defender. — Forsyth.
Proving of ike 2>*wr.— Held that it it incompetent to prove the tenor of an m-
extracted decree or interlocutor, without also proving the tenor of the anm*
moos.
June 26. 1827. D*- Duncan raised a summons of proving of the tenor of «r-
1»t Division. **"* interlocutors which had been pronounced hi a process, the
originals of which, together with the summons, had been Use
. They had not been extracted ; and it being objected that the pur-
suer ought to prove the tenor of the summons before he coold
competently prove that of the interlocutors, the Court sustained
/ COURT OF SESSION. 841
the objection, and sisted process till a supplementary summons
should be brought.
P. Dudgeon, W. S. Agent
*
D. Sim, Pursuer. — Jeffrey— Jameson. No. 408.
G. Stewart, Defender.— Sol-Gen. Hope — Forsyth.
Sale— Bounding Title*— & party having purchased an area, which wn described
in the disposition as bounded by the property of another, (previously acquired
from the same author,) and bearing reference to a plan, whereon this property
was delineated as consisting of a house with a projecting outside stair— Held
that although the stair projected beyond the property, yet he was not entitled to
challenge it as an encroachment.
M'Leod, the proprietor of certain subjects in the village of June26^l827.
Gorbak, disponed in 1791 to Mitchells a part of.it, described 90 Division.
as a piece of waste or vacant ground, bounded in a manner spe- Ld. cringletie.
cified in the disposition, which further reserved * to my said B*
' disponees six feet backwards, to be kept clear for preserving
4 my said disponees their light in any building to be erected
* on the premises.' Mitchells were infeft on this disposition in
1793, and they then built a house on the area so conveyed to
them, erecting the back wall of the house on the verge of it,
according to the boundaries specified in the disposition ; but the
house being intended to be occupied in two separate fiats, they
made a door in the upper flat opening to the back, for access to
which they built an outside stair projecting over part of the
six feet reserved in the disposition, and entering from a street
which passed the side of the house. The house thus built was
in 1812 (after an intermediate transference) conveyed to the
father of the present defender, who was regularly infeft. In the
mean time, the remainder of the property (on which also there was
a. house) descended, on the death of M'Leod, to his son, who
in 1823 conveyed it to the pursuer Sim by a disposition de-
scribing it as bounded by ' property belonging to the heirs of the
* late Mr. John Stewart,' and making reference to a plan of the
premises which was subscribed by the seller as relative thereto,
and in which the defender's property was laid down with the out-
side stair delineated as part of it. No objection had previously .
been made to the stair by M'Leod pr his son, but Sim now raised
an action, concluding to have it found that he was proprietor of
the six feet extending backwards from the defender's boundary,
subject only to the service ne luminibus officiatur, and that the
. defender should be ordained to remove the outside stair as an
encroachment on his property.
&S CASE6 DECIDED IN THE
To this it was pleaded in defence,
1. That the pursuer's authors having allowed the stair to be
built, and having acquiesced in its remaining for SO years, the
pursuer was barred, by their acquiescence, from challenging it;
and,
£. That as the defender's property was declared in the pursuer's
disposition to be the boundary of his purchase, and as the stair
was in existence at the date of the disposition, and formed part
of the defender's house, and was delineated as part of the house
on the pl*n with reference to which he made the purchase, he
could not bon& fide have believed that he was purchasing the pro-
perty over which it was built, or the privilege of halving it re-
moved.
The Lord Ordinary pronounced this interlocutor : — ' In re-
spect that when the pursuer purchased the property to which
he refers in this process, he did so in conformity to a plan spe-
cially referred to in the disposition of it to him, which plan also
bears reference to the said disposition : As also, in respect that
on said plan the subject belonging to the defender is laid down,
and the outside stair on the back part of it is also delineated,
&nd the whole is thus described in the said plan, ' Property be-
• longing to the heirs of the late Mr. John Stewart,' via. to the
* defender in this action ; and, lastly, that the disposition by
4 Alexander M'Leod, heir of the author of the defender, and
* author of the pursuer, bounds the pursuer's subjects by c pro-
**' perty belonging to the heirs of the late Mr. John Stewart,'
4 which is the property referred to in the said plan, finds that
* the stair must be held to be a part of that property, and of course
' was not conveyed to the pursuer by Alexander M'Leod ; there-
* fore assoilzies the defender from this action, finds him entitled
c to expenses, and decerns.' His Lordship stated in a note that
lie did not think the plea t>f acquiescence could apply to a case
regarding the assumption of feudal property ^requiring infeftment,
unless amounting to prescription.
Against the Lord Ordinary's interlocutor Sim reclaimed, bat
the Court unanimously adhered.
ce. — I thought at first that the Lord Ordinary,
of the case, had still hud some difficulty in
the law to it ; hut I am now satisfied he has dene it my «nJL
The etair was part of the house, and the puraaer takes the
the boundary of his right, and I therefore think we
Loan Justicb-Ci/BRK— I entirely cancre Any thffiadfy is
pletely removed by the circumstance of the plan being itfriudUi ■
COURT OF SESSION. 848
the titles, and signed as relative thereto. It thus becomes part of
the titles, as was settled in the case of Buttenrorth,
ords Pitmjlly and Alloway agreed.
Pursuer's Authority.— 9. Ersk. 6. 3.
Defender's Authorities.— Lang, June 19. 1813, (F. C.) ; B. of Kinnoall, Jan. 18.
1814, (F. C); Ayton, May 10. 1901, (Ap. Prop. No. 6.)
Campbell and Macdowall, — D. Fishsb, S. 8. C-— Ageats.
J. Gibson-Craig, Pursuer.— CocJcburn. No. 409*
Sir P. Walker, Defender. — SoL-Gen. Hope — Whigham.
Repetition.— Held that a party who had enjoyed the office of Deputy Usher of E*r
chequer on a commission afterwards set aside, and bad been found Uatye to ac.
count for the profits and emoluments of the office, was bound to repeat the fees
levied by him, and a salary drawn under a sign manual during pleasure in his
name personally, which, however, had always been granted to the holder of the
office ; but entitled, on the other hand, to deduct any sums paid to a substitute
for performance of the duties, and a reasonable allowance when performed per*
sonally by himself.
•
After the interlocutor formerly pronounced in this action, June 96. 1837.
ante, Vol. II. No. 832, (which see) finding the defender Sir Patrick 2d p^ov.
Walker and his brother liable to account to the pursuer, as Prin* l<l Mackenzie,
cipal Usher of Exchequer, ' for the profits and emoluments of the M'K.
* office of Deputy Usher,1 held by them under a commission set
aside in 1809 as vitiated in essentiatibus, the cause returned to
the Lord Ordinary, who appointed a condescendence of the profits
and emoluments to be given in. These profits and emoluments
consisted, 1. Of certain fees amounting on an average to about
£55 per annum ; and, 2. Of a « salary1 of £50 a year, which had
always been in use to be granted out of the Civil List for Spot-
land, and had been drawn by Sir Patrick apd his brother, in
virtue of a sign manual during pleasure in their favour noipinatim
as Deputy Ushers; but Sir Patrick (whose brother was now dead)
contended,
1. That the emoluments were but a reasonable compensation
for the duties of the office, which bad been actually performed
by him and his brother.
2. That at any rate, as to the salary of £50, it did not belong
to the ofijee, but was drawn in virtue of a royal warrant during
pleasure to Sir Patrick and his brother personally ; and besides,
that the pursuer had not appointed any deputy who could have
been entitled to obtain a warrant for this salary till the year
1809; and,
9. That George Walker being now dead, his representatives
must be made parties to the action.
844 CASES DECIDED IN THE
To this it was answered,
1. That the performance of the duties of the office could be pro-
cured for a very trifling consideration, and that these duties had
not been performed by Sir Patrick or his brother in person, and
were of a nature that they could not be performed by persons in
their station of life, and had accordingly been executed by a per-
son appointed for that purpose, who received a trifling remu-
neration, the rest of the fees forming part of the profits of the
office.
2. That the salary of £50 had always been granted to the per-
sons holding the office in respect of the office, and so formed truly
part of its emoluments ; and,
3. That the defender and his sisters, being nearest of kin of
George Walker, had been called in a summons of transference,
in which, on no appearance being made, decree of transference in
statu quo had passed ; and besides, that as Sir Patrick and his
brother held the office jointly, and were jointly decerned against,
it was competent to proceed against either of them.
The Lord Ordinary found Sir Patrick liable for the several
sums of fees and salary received, by him, with interest from the
date of receipt, but entitled, on the other hand, ' to deduct the
( sums actually paid to the person or persons who performed the
' duty of the office libelled, with legal interest on the same since
' paid ;' and to his Lordship's interlocutor the Court adhered,
with this variation, that Sir Patrick was also entitled to a reason-
able allowance for such duties as he should instruct to have been
performed in person by himself or his brother, as well as to deduc-
tion of sums paid to others for doing the duty.
Loan Justice-Clerk. — As to the salary, if it could be made oat that
it was an individual pension, tbere would be a great deal of difficulty
in finding Sir Patrick accountable for it ; but the terra pension »
not used in the sign manual, nor is it payable out of the Pension Lot.
It is a salary attached to the office, and I^annot distinguish it from
the other emoluments. As to the other point, I doubt if the reserva-
tion in the interlocutor is sufficiently broad ; and if the whole da-
ties were performed by a substitute, and that person had a certain
allowance, then deduction can only be claimed of that allowance.
But if Sir Patrick and his brother performed the duties personalty,
he is entitled to say I must have an allowance for doing that which
carried on the office, and enabled the fees to be drawn; for, if the
.duties had not been done, the emoluments would undoubtedly have
been stopped.
Lord Gleni.ee.~I entirely agree. This salary is undoubtedrr part
of the emoluments ; but I can see no grounds for not granting the
j
COURT OF SESSION. 845
remuneration if Sir Patrick had performed the duty himself,
and which is given in the case of his having employed another
person.
Lord Pitmilly concurred.
Lord Alloway.— I concur on the general question ; hut as to the
proposed deduction fos duties performed by a person holding an
office mall fide, the duties of which the party having the true right
was willing to perform, I know of no case to sanction it On the
contrary, in the ease of Dr. Dick, although be had performed the
duties of the parish to which he was inducted, and had drawn the
stipend, no remuneration was allowed on bis presentation being set
aside, although be was not in mala fide, as this defender bas been
found to be. At the same time, I admit that every sum which he bas
actually paid, and which Mr. Gibson-Craig's deputy would have
been obliged to pay, forms a proper deduction.
Lord Justice-Clerk. — My conception of this office is different from
that of Lord Alloway. If the duties bad not been performed, the
fruits wduld not have arisen. This was tbe principle of decision in
tbe case of M'Donald v. Jack, and tbe case of Dick does not apply,
because tbe fruits there did not arise from performance of the duties,
while here they do.
Gibson-Craigs and Wardlaw, W. S. — A. Goldie, W. S*— Agents.
A. Lyle.— Spiers. No. 410.
J. Gtreig and Others.— Cuniflg-Aam^ — D. Macfarlane.
Peinding— -Legal Diligence— Erasure. — Held, that a caption raised before the
expiration of the inducue is inept ; — questions argued, but not decided, first,
whether a delay of four months in reporting a poinding renders it null and void,
or only inchoate ; and, second, whether an erasure in the date of an execution of
poinding is fatal to it, although made apparently to rectify a mistake.
On tbe 2d of November 1820 Lyle raised letters of horning June 27. 1827.
against Robert M'Vey, farmer at Ballantoun, for payment of 1§T Division.
£1%%: 16: 11 1, and charged him on the 7th. The letters were Lords Alloway
denounced on the 21st, caption was issued on the 22d, and on and E,din'
the 25th an execution of search was returned against him. On
the 27th Lyle executed a poinding of M,Vey',s effects situated
on his farm, but which were subject to the landlord's right of hy-
pothec. No further proceedings were taken till the 29th of March
1821, in consequence, as Lyle alleged, of it being necessary to
arrange with the landlord, and of M'Vey having proposed to pay
a composition to his creditors. On that day, however, he reported
846 CASES DECIDED IN THE
the execution of poinding to the Sheriff, and he obtained a war-
rant of sale on the 81st, in virtue of which the effects were sold
on the 25th of April, and the proceeds received by Alexander
Mill, who had been appointed commissioner for that purpose.
Greig and others, who were also creditors of M'Vey, then exe-
cuted arrestments in the hands both of Lyle and of Mill, and
lodged claims in the process of poinding, maintaining that they
were entitled to a pari passu preference with Lyle. A multiple-
poinding was thereafter raised in this Court, and an advocation
ob contingentiam was brought of the process of poinding, which
were conjoined.
Oh the part of Greig and others it was then contended,
1. That as the date of the execution of poinding had been
• originally written 27th November ' eighteen hundred and twenty-
« one,' and the word ' one1 had been erased, and the word * years'
substituted in its place ; and as the erasure was manifest, and
was in a material part, the execution was void and null.
2. That supposing it were not so, the poinding was inept and
ineffectual; because, although it was executed on the 97th of
November 1820, and although the Bankrupt Statute requires
that it shall be ' forthwith9 reported to the Sheriff, yet no report
had been made till the 29th of March 1821, being more than four
months ; and,
8. That although Warrant of sale had been granted on the Slst
of March 1821, yet it had not been executed till the 25th of
April, being more than 20 days from its date, and so contrary to
the statute.
To this it was answered by Lyle,
1. That there was no evidence that the date had been originally
written 1821 ; that it was admitted and proved that the poinding
had been in point of fact executed in 1820; and that the cuccimd-
stance of the word c years' being written upon an erasure was of
no importance, because the execution was sufficient, even if that
word were to be held pro non scripto.
2. That the statute does not require that the execution shall be
reported within any specific period, and therefore it is relevant
to show circumstances to account for and excuse the delay: —
that in this case the proceedings in the poinding were obstruct-
ed by the existence of the landlord's hypothec and die proposal
of composition, and that, so soon as these obstacles were removed,
the report had forthwith been made to the Sheriff:— that, beside*,
the statute did not declare that the poinding should be nuH and
void ; but that the only effect of the delay was to enable a creditor
who had competing diligence to obtain a preference by complet-
COURT OF SESSION. 847
ing it in terms of lav; and that in this case the other parties
had no competing diligence ; and,
S. That the statute did not apply to the sale of the effects, but
to the publication, which had been made within the twenty days,
and therefore the objection to the irregularity of the sale was un-
founded, v
On hearing parties in regard to the second objection, (the others
not having been at this time stated,) Lord Alleyway pronounced
this interlocutor :— > In respect that the common debtor M'Vey
4 was rendered bankrupt by an execution of search on a caption
' upon the 25th November 1820, and the execution of poinding
* in question is dated upon the 27th of that month, which was not
' reported to the Sheriff till four months thereafter ; and this de-
* lay, it is alleged, was occasioned, first, by a preferable claim hor-
* ing been made by the landlord, the Duke of Montrose, for the
' whole of the common debtor's effects ; and, secondly, by an offer
* of composition and settlement by the common debtor; finds
' that this poinding, until it was so reported, could only be held
' as an inchoate diligence, and that the advocator Mr. Greig, or
* any other creditor, completing their diligence in the mean time,
* must have been preferred upon the principle laid down by the
c Court in the case of Sampson and others against M'Cubbin,
' 15th May 1822; but as there is no competition with any dili-
* gence that had been completed before the poinding ita question
' had been reported and rendered effectual by the sale under
' the Sheriff's warrant, there is no reason for setting aside that
' poinding as ineffectual on account of the execution not having
* been immediately reported, since Lyle had no interest to report
' the poinding until he ascertained that there were effects of the
* tenant's not carried by the landlord's preferable right, and the
* diligence is not, by the delay, rendered null and void; there-
* fore sustains the poinding, and appoints the cause to be en-
* rolled, that the interests of the parties may be adjusted accord-
' ingly.' Greig and others having represented, Lord Eldin re-
ported the cause to the Court on Cases ; and an objection having
been stated, at the advising, to the regularity of the diligence, on
the ground that the denunciation had been made and the cap-
tion issued before the expiration of the induciae, so that M'Vey
had not been rendered bankrupt four months prior to their ap-
pearance, their Lordships appointed them ' to lodge a minute as
* well upon the point of vitiation, as upon the alleged irregularity
* of the caption.' Thereafter their Lordships found * that the cap-
* tion was raised before the days of the charge were expired, and
* therefore that the said Robert M'Vey was not regularly made
848 CASES DECIDED IN THE
« bankrupt upon the 25th of November 1820 years, and remit to
* the Lord Ordinary to proceed accordingly ; but find no expenses
« due to either party, except the expenses of bringing the multi-
' plepoinding into Court.'
On the general point relative to the reporting of the poinding, their
Lordships concurred in the doctrine laid down by Lord Allowsy;
but there was a considerable difference of opinion as to the effect
of the erasure, seeing that it was demonstrable that the poind-
. ing could not have been in 1621- Aa their Lordships, however,
were unanimous that the objection to the regularity of the dili-
gence was well founded, they placed their judgment upon that ground;
but refused to allow expenses to Greig and others, in respect of the
mode in which the case had been pleaded.
Lyle'e Authorities.— (I.)— Rankine, July 1. 1825, (ante, Vol. IV. No. 106) ; I*ek-
hart, March 5. 1806, (16939) ; Adams, June 12. 1810, (F. C) ; Hay, Dec. 15. 1820,
(notrep.)— (2.)— 54. Geo. III. c. 157. § 4 ; 33. Geo. III. c. 74; A. S- Dec. 14-1805;
Sampson, May 15. 1822, (ante, Vol. I. No. 464) ; Johnston, Feb. 10. 1821, (F. C.)
.Greig and Others' Authorities.— (].)—*. Stoir, 22. 29; Rankine, July 4. 1883,
(Lord Alloway) ; Craig, 244; 2. Stair, 3. 17 ; Bell on Purch. Title, 155.
G. Bunlop, W. S.— J. Greig, W. S. — Agents.
No. 411. R. Taylor, Suspender — Jeffrey— Tait.
Janet Ferguson, Charger.— Robertson — Donald.
June 27. 1827. This was a question as to whether the charger had adduced a
lar Division ^p'60* probatio of the suspender being the father of her child.
Lord Eldin. The Justices of Ayrshire found that she had ; but the Lord Or-
D. dinary altered, and suspended the letters ; and the charger having
thereupon reclaimed, and offered further proof, the Court remit-
ted to the Justices to receive it.
J. Murdoch, S. S. C. — J. C. Tait, W. S. — Agents.
No. 412« J- Smith and J. Tasxrr, Suspenders. — SoL-Gen~ Hope —
Lothian.
R. Robertson and Others, Chargers. — D. qfF. Moncreift--
Small Keir.
Clerk of Court— A. S. March 6. 1783— Statute.— In certain proceedings before a
Justice of Peace Court, founded on a statute declaring their Judgment final, lite
Clerk of Court having acted as agent of one of the parties, with the connivance
of the opposite agent— Held,— 1.— That the decree of the Justices and whole
proceedings were null ;— and,— 2.— That the consent or connivance of the op-
posite agent was no bar to the objection being pleaded, and that it was pars
judicis to notice it.
June 27. 1827. Messrs. Robertson and Cant, merchants in Perth, having
2d Division, taken a shop in Blairgowrie for the period of six weeks, with the
Ld. Mackenzie, view of establishing a branch of their business there, sent Smith,
COURT OF SESSION: 84»
one of their journeymen, and Tasker, an' apprentice, with- an
assortment of goods to open the shop. On the same day on
which the shop was opened, a petition was presented to the
Justices of the Peace, in the name of Robertson and others,
merchants in Blairgowrie, setting forth that Smith and Tasker
had contravened the provisions of the Hawker and Pedlar's Act,
by keeping an * occasional shop' without a hawker's licence, and
praying for warrant to have them brought up for examination,
and convicted in the statutory penalty. Warrant was accordingly
granted, and considerable procedure followed, in the course of
which a proof was taken. Ultimately, however, the Justices
found Smith and Tasker liable in the penalty of jP£5, and granted
warrant for the sale of goods in the shop to that amount ; and on
an appeal to the Quarter Sessions, this judgment was adhered to.
In all these proceedings the Clerk of the Justice of Peace Court
had acted also as the agent of Robertson &c. He had drawn
the original petition, and signed the various pleadings ; he had
also conducted the proof as their agent, and at the same time had
acted as the Clerk of Court. No objection, however, was taken
to this on the part of Smith and Tasker, except at discussing the
appeal before the Quarter Sessions, when it was overruled. On
the contrary, it appeared that in a letter by the agent of Smith
and Tasker to the Clerk, complaining of too early a day being
fixed for a diet to take the proof, he had stated, ' I make no ob-
' jection to your being Clerk of Court and agent in the case at
' the same time ; then why take me short ? For it is me, and not
' my clients, who are aggrieved by so summary a diet being filled
4 up.' But Smith and Tasker having brought a suspension of
the decree of the Justices, besides maintaining certain pleas on
the merits, they contended that the whole proceedings were illegal
and inept, in consequence of the Clerk of Court having also acted
as agent for the complainers.
To this it was answered,
1. That the suspension was incompetent, as the Justices of
Peace were empowered ' finally to determine' questions arising
under the Hawker and Pedlar's Acts.
£. That though the circumstance of a Clerk of Court acting
as agent might subject him to certain penalties under the Act
of Sederunt 1783, it did not render the proceedings void ; and,
3. That the suspenders were barred from insisting on the ob-
jection, both by acquiescence and the express consent -of their
agent in the Inferior Court.
The Lord Ordinary, > in respect it is admitted that the person
< who was employed by and acted for the chargers aa agent in
850 CASES DECIDED IN THE
< the Inferior Court its thia cause, also was and acted ia the
' Court and cause as Clerk of Court ;' found ' that the proceed-
* ings were irregular and illegal,1 suspended the letters simpliciter,
and found the chargers liable w expenses. The Court unani-
mously adhered.
Lord Justice-Clerk.— I should consider this to be a very important
case indeed, if we could entertain the slightest doubt. that the ob-
jection which is here founded on does not render the whole proceed*
ings fundamentally null and roid. The Act of Sederunt 1783 is
merely declaratory of the» common law ; it established no new lsw9
but only declared what must be the law of every wise judicature;
and that Justices of Peace are to hare as then4 clerk, eo whose ad-
vice they must frequently lean, the agent of one of the parties who
conducts his case, and at the same time draws the interlocutors,
and advises the Justices, is so monstrous, and so contrary toths
fundamental principles of justice, that it cannot he tolerated for a
moment. It would not be a bit worse if the Justices themselves woe
to act as agents; and the Act of Sederunt being merely declaratory,
we are bound to find that the whole proceedings rest on a corrupt
basis. It is said that tbe opposite agent consented ; but this just
makes the matter worse. The two agents agree to accommodate
each other, and .sacrifice their client ; and this shows die manifest
iniquity which might result from the practice. It is, however, pars
judicis to notice an objection of this kind; and although the party
had waived it by an express entry on die record, the Court would
have taken 4t up ; but it appears in met that the objection was stat^
ed at the Quarter Sessions. Without, therefore, entering iato the
merits, we must hold these proceedings to be null and void; and I
hope this will be a warning to *H such judicatories in future.
• Lord PItm illy%— I entertain entirely the same opinion. The con*
aent of the opposite agent makes the matter worse, and is a pactum
UKcitum which we cannot countenance. If we listened to the plea
that tbe proceedings were not rendered null, we would be landing
ourselves to an evasion of the Act of Sederunt, which puts the Clerk
of Court in the same situation with the Judge.
Lords Glenlee and Alloway concurred.
D. Gray, S. S. C J. Burners, S. S. C— Agents.
m
r%o. 413. J. Barclay, Pursuer.— Sol-Gen. Hope — Cockburn.
W. D. Gillon and Others, Defenders.— £%fne — MaamaMc
Jane 27. 1827. Case which had now resolved into a question of expenses. The
2d Division. Court found neither party entitled to them.
Ld. Mackenzie.
B. A. Burns, W. &—Guson-Craios and Waiidxaw, W. &— Agents.
COURT OF SESSION. 861
A. Laing and A. Rhind, Suspenders.— »i>. ofF. Montrtiff— No. 414.
Cuninghame.
A. Anderson, Charger. — Currie.
Bill of Exchange — Proof — Relief, — Circumstances in which it was held,—
1.— That two of four co-acceptors of a bill of exchange were not entitled to prove
their defence against the claim of relief by a third, who had paid part of the
bill, except by writ or oath ; and*— £.— That one of three co-acceptors, who ad-
mitted that they were cautioners for a fourth, baring paid part of the bill, was
entitled to relief from the other two only pro rata.
Anderson, a joint acceptor, along with one Brander and the June 27. 1 W.
two suspenders Laing and Rhind, of a bill of exchange for jPIOO 2d DlTIMOir-
to the Farmers' Friendly Society of Elgin, haying paid i?68 of Ld.Mackenrie.
its amount, (the rest having been paid by Brander, who subse- B.
quently became bankrupt,) raised an action of relief against Laing
and Rhind, concluding against them for payment of three fourth
shares of this sum. In defence against this action, Laing and
Rhind alleged that the bill was merely a renewal of a series of
previous bills, on which they and Anderson were acceptors, ori-
ginally granted for jPIOO borrowed by Anderson from the Friend*- .
ly Society, in which they were merely cautioners, and that, on the
lost occasion of renewal, Brander's name had been obtained as an
additional security to the Society, Anderson still remaining, as
before, the real debtor* On the other hand, Anderson averred,
That although die former renewals bad been for a loan in which '
he was truly the debtor, yet, previous to the last renewal, and when
he was about to pay up the loan, Brander had applied to have it
transferred to him, and that this having been agreed to, the new
bill was signed first by Brander as primary obligant, and by him-
feelf and the suspenders, all three being merely cautioners for
Brander, though, on the face of the bill, the whole appeared as
joint acceptors. In proof of this allegation* he appealed to the
circumstance of his having been ranked as a creditor on Brander's
estate, and to a letter which was written by him and Rhind, one
of the suspenders, on the occasion of the partial payment made by
Brander, and addressed to his agent, in these terms :— ' As you
* have this day paid the treasurer of the Fanners' Society £45. lis.
* 3d., as part of a bill granted to them by James Brander and us
* for i?100, we declare the said James Brander relieved thereof.'
The Sheriff having found that the averments of the suspenders
could only be proved scripto vel juramento, and decerned against
them, conjunctly and severally, in terms of the libel, they pre-
sented two successive bills of advocation, which were refused by
the Lord Ordinary, and eri the decree being Attracted, they
brought this suspension, en the grounds,
ASS CASES DECIDED IN THE
. 1. That the privilege which entitled an ordinary holder of a
lull to insist that proof of non-onerosity should only be by writ or
. oath, did not extend to the case of co-acceptor* in questions of
relief among themselves, and that they were therefore entitled to
a proof of their averments prout de jure ; and,
2. That at any rate,' being cautioners .along with the charger,
they could only be decerned against each for one third share of
the sum paid by him, there being no allegation that either of them
was insolvent.
r- To this it was answered,
1. That the legal presumption arising from aH the parties bang
joint acceptors on the face of the bill could only be redargued by
writ or oath, and that this was res judicata in the present case by
the refusal of the two bills of advocation'; and besides, that the
averments of the suspenders were disproved by the circunistandes
founded on by the charger in support of his allegations ; and,
% That the refusal of the bills of advocation formed res judi-
cata as to this point also, and that the charger must be considered
as in right of the bill, and entitled to proceed against all the par-
ties appearing on the bill to be jointly and severally liable. -
The Lord Ordinary, after granting a diligence to enable the
suspenders to prove their averments scripto, found ' that the
' proof does not establish the averments of the suspenders, but
' that the charger, as one of three cautioners, having paid the
* debt, is not entitled to pursue the suspenders, as the other two
* cautioners, jointly for three fourth parts of the same, or even
< for two third parts of the same ; but that as there is mrabega-
'- tion of the insolvency of either of the suspenders, he is entitled
< to relief for only one third part of the debt from each. e£ jfaem/
His Lordship therefore found the letters orderly fTW*-* to
that extent, and suspended quoad ultra.
The Court, by a majority, adhered.
A. Duff, W. S— C. Gordon, S. S. C. — Agents.
No. 415. A. Kennedy and Others, Claimants. — D. ofF. Monet tif
Greenshield* — Curtie.
t J. Wightman, Respondent.— -Sol.-Gen. Hopc—G.
gHrjfofrf -Circumstances in which a gratuitous trustee under a deed af
was found personally liable for funds intromitted with by a
June 28. 18*7. The late Nicol Shaw executed a deed of settlement, by woich
in* Division, he disponed his whole effects to his wife, David 1
Lord Eidin. merchant, and Thomas Williamson, writer* both in
s.
COURT OF SESSION. 818
and the respondeat John Wightman, a farmer* as trustees for
various purposes, and particularly for payment of certain lega-
cies to themselves, and to Kennedy and others. The deed did
not contain any clause exempting the trustees from being liable
singuli in solidum, nor was any quorum appointed. On the
death of Shaw in July 1808, the widow and the two William-
sons accepted of the office, and an inventory of the moveable
effects was immediately made up, and a confirmation expede in
favour of the whole trustees. In 1809 appearance was made by
the trustees, including Wightman, in a process of multiplepoind-
ing before the Sheriff of Dumfries-shire, in which decree of pre-
ference was pronounced in their favour. Thomas Williamson died
in 1810, and in 1811 part of the trust-property, consisting of a
house and shop in Dumfries, was sold by die trustees to David
Williamson, and of which the disposition was signed by Wightman,
but no part of the price was paid. Again, in 1816, he concurred in
granting two leases of part of the trust-property,' and subscribed
them as a trustee. The widow died in 1816, so that the only
surviving trustees were Wightman and David Williamson. Dili-
gence was in 1818 raised in name of these trustees against cer-
tain tenants, under which payment of the rents was recovered.
In various other respects Wightman acted as a trustee, but he
alleged that the management was taken entirely by David Wil-
liamson—that he subscribed his name to the deeds merely as a
matter of form ; and he denied that he had ever intromitted with
any part of the trust-funds; and no evidence of such intromission
was produced. Thereafter a process of multiplepoinding having
been brought in name of Wightman and Williamson, an order of
consignation was issued, but this was opposed by Wightman ; and
Williamson having become bankrupt, Kennedy and others claimed
payment from Wightman personally of the funds which had been
intromitted with by Williamson. This he resisted, on the ground
that although the circumstance of subscribing the deeds and do-
ing other acts might establish the fact of his being a trustee, yet
as he was merely a gratuitous trustee, he could only be liable de
dok> vel lata culpa, and could not be responsible for the conse-
quences of the bankruptcy of his co-trustee.
To this it was answered,
1. That trustees under a deed of settlement are liable singuli
in solidum, unless the trust-deed declares that tbey shall be liable
only pro rata, or each for his own intromissions ; and,
£ That trustees who are not so exempted are liable for the
culpable omissions, as well as for the intromissions and unwar-
rantable acts of management of each other.
vol. v. 3 I
884 CASES DBCIDdED IN THE
.The Lqt4 Ordinwry, after issuing an interim
Wightpian personally, in which he acquiesced* and on advising
the report of an accountant, found him ' personally liable for the
« sum of J&1434 : 13 : 7i sterling, formerly found to be the amount
' of the trustees' intromissions with the trust-funda, and for m-
' terest thereof from the dates on which the sums composing that
' balance were due, as appearing from the report of the aocoontastt
' it process, subject to deduction of the sum and interest for which
( Mr. Wigbtmen was formerly found personally liable ; and fur-
c tber found the said John Wightmen personally Uabk to the
' claimants in the whole expenses of process incurred by than;'
and to this interlocutor the Court adhered.
Load Ciuueui.— I beg leave to eater my pretest agatoet the
ral doctrine maintained by the pursuers, that where there is no
clause in a trust-deed declaring that the trustees shall nqt be
, liable singuli in solidum, they shall he responsible to that offset.
If there be no sucb clause, we must go to the common lawr the
rule of which is, that, in order to establish such a liability, fraud
must be proved, mere negligence not being sufficient. Accordingly
Mr. Erskine lays it down in regard to a mandatory, that where
no benefit accrues to Him, he is liable for actual intromissions only,
or for such diligence as he employs in his own affairs. In this
case Wightman is a mere country farmer, and was no relation of
the truster, who, it is evident, from having appointed a merchant
and a writer along With him, both rending in bumfnee, expected
that he should only give them Ms advice, and that the active ma-
nagement of his aftftlr* should be taken by these persons. Ifherc-
' Ave cannot hold this in&ridoal liable for their intromiswws.
Lotrd PRBSiriiNT. — I agree irith Lord Crafgie as to the law <A
mandate, hut that of trust fe very dfflercut* Tin iiimiihiif is
aftfe^-fMfrtto power of watching tile acts ef las mandatory^
may recall his authority whenever he thinks fit ; but, In fee
> of a mortis cans* trust, the truster is dead, and ha haw devolved
ttsiwimle powws to Ua trustees, who eve this can&kd to ad
without control- A much stricter mie must therefore be enforced
against them than against a mandatory. Bat frhia pan— i aflwod
his name to be used* whereby the ether, trnatoes were caaUed to
intromit with the funds ; and when the ease came into Canity end
when Williamson was not fcanjerupt, he most wpifffeplf ONaated
the order for consignation, ao that if he is obliged to pef$he has
himself alone. to blame.
Lords Bjloray and Gu.ua* cop*in*d,wfch the Laid JhtoUant ;
and the former observed, that the general.aopt ha4
by the House of Lords in the ease of DaJrfQtyaJa'a,
COURT OF SESSIGBT. 885
Q*m4*t>4 .MvitwHr-VChm**, Feb. 14 1*B7, <«***, v*«L V. No. 91t); Onar
o. Gray's Trustees, 1S19, (not if pj
W. Johnston, 8. 8. C. — W. Stuart, W. 8. — Agents.
J. Wright, Suspender.—^. ATNeitt. No. 416.
J. STGrsgqb, Charger. — Monteith.
Master and 8arva&t*--Sunimary b*pri$oniMnt-~G(ntt{6Afr*~-'The muter of an Ap-
prentice, whose indenture bound him to pay 2*, or work two days for each day
he. should absent, himself, having caused the apprentice to be apprehended in
consequenQe of a temporary desertion, but alter he had returned to bferserrice,
and been imprisoned till he should find caution to implement his indenture;
a friend having granted a bond of caution in order to obtain his liberation—
Hele\ in a suspension b J the cautioner of a charge given on the bond In eonee-
qaenee of an alleged second irsfitinn thirti the nummary appinsjr nsiisji ml im
ptisonment were illegal, and that the bond could not be enforced.
This case having returned to the Lord Ordinary after the Jane 88. I827.
judgment pronounced ante, Voh IV. No. 291, (which see,) it was 2dJ>
contended by the suspender that he was entitled to have the Ld. Mackenrie.
letters suspended in toto, because, in the circumstances of the case, F.
the bond of caution charged on was illegally obtained, in respect
the cha/ger was not entitled, uqder bi&uidenture with his appren-
tice, Robert Wright, to apprehend him summarily, while actually
at work with him, on account of a previous temporary desertion,
and to have him imprisoned till ho should find caution to implement
the indenture. On considering this plea, the Lord Ordinary pro-
nounced the following interlocutor :-r-( Finds that in the indenture
' between the charger and his apprentice, Robert Wright, there
( was a stipulation in the following terms : — ' The said Robert
" Wright binds and obliges himself, that for each day's absence,
" excepting as aforesaid, be shall either pay to his said master 2s.
" sterling, or shall serve him two days for one at the expiry hereof,
in the option of his said master, which absent days shall be suffi-
ciently verified and ascertained by the account, thereof takenfrom
" the books of the said John M'Gregor, and attested by his roa-
" nager or clerk at the said field, or either of them :' Finds that
* this stipulation appears particularly to contemplate the case of
' temporary desertion, by the apprentice afterwards voluntarily re-
( turning to hie master's service} and finds that there is no stipula-
' tion, that in the event of such temporary desertion, caution to
' any extent or effect shall be found by the apprentice : Finds
4 that in die summary application to the Sheriff by the charger
( against this apprentice, no evidence was taken but the declara-
' tion of the apprentice : Finds that by the declaration it ap-
Si2
856 CASES DECIDED IN THE
' pears that the apprentice had deserted his master's service for a
* short time, but had returned thereto : Finds that, in these or-
* cumstances, there were not sufficient legal grounds for compelling
* the apprentice, by summary imprisonment, to find caution, under
* a penalty, that he would implement the indenture : Therefore
' finds that the bond of caution granted by the suspender was
' questionable, and that the charge thereon ought to be suspended ;
* suspends the letters simpliciter, and decerns ; and finds the
' charger liable to the suspender in expenses.' To this interlocu-
tor the Court unanimously adhered.
The Loan Ordinary observed in a note : — A reduction in tins case
would only cause expense,, and appears unnecessary. The bond of
caution seems part of a judicial proceeding, the effect of which any
be suspended at any time before complete implement. The Lord
Ordinary considers this case special, and wishes to be understood at
not giving any opinion against the legality generally of compelling,
by summary imprisonment, an apprentice, who is in a state of de-
sertion, to find caution to return to bis master's service, and to serve
out his term. The Lord Ordinary, as far as be recollects, was ori-
ginally unwilling to force parties to discuss the legality of the Sheriffs
warrant in this case, because tbe suspender alleged that, before sus-
pending, he actually made a tender to implement his obligation of
cautionary, by bringing back tbe apprentice, or paying (air damages
for bis desertion, and consequently had an advantage in not plead-
ing, as be did not plead, his cause any higher.
Tbe Judges concurred.
R. and A. Kennedy, W. S. — C. Fisher, — Agents.
No. 417. Muedo M'Kenzie. — Buchanan— A. iTNcUL
Campbell MTntosh and Others. — Skene— Robert**.
Competing.
June 88. 1827. Decree of preference in a multiplepoinding to the amount of
2d Division. a k°n(*» *** arrears of interest, not instructed to have been paid,
the claimants preferred, who were executors of a party deceased,
always confirming before extract.
Lockhart and Swan, W. &— D. M'Intosh, W. &— Agents.
COURT OF SESSION. 867
A. Meldrum, Esq. Pursuer.— Jameson — Hogg. No. 418.
F. L. Maitland, Esq. and Others, Defenders.— Jardin*.
Entail*— limited Fiar.— Held that a person possessing under an imperfect entail
U not entitled gratuitously to increase the burdens, or impose additional restric-
tions on the heirs-eubstitutes, beyond those contained in the original entail*
m
In 1788 James Makgill of Rankeillor executed a disposition June 29. 1827.
of his whole lands to himself and the heirs of his body, whom \„ division.
failing* to Catherine, his eldest sister, and the heirs of her body ; Lord Newton.
whom failing, to Isobel, his second sister, and the heirs of her D*
body ; whom failing, to John Makgill of Eembach, and the heirs
of his body ; whom all failing, to his own nearest heirs and assig-
nees whatsoever; but this under certain reservations, provisions,,
and declarations which he ordained to be inserted in the titles,
and which he declared should be the conditions under which the
disponees were to accept of the lands. These conditions were in
these terms :— 4 Providing always, as it is hereby expressly pro-
4 vided and declared, that the heirs of my body, and others above
* written, as well male as female, and the descendants of their
* bodies succeeding to the foresaid lands, baronies, and others
* above disponed, in virtue of the destination above written, shall
* be obliged to assume, use, and bear the surname, designation,
4 and amis of Makgill of Rankeillor, as their proper surname,
4 designation, and arms in all time coming : And when an heir-
* female . happens to succeed to the said lands and estate, who
* shall be at the time unmarried, then she shall be obliged to
* marry a gentleman of (he surname of Makgill ; or who, and the
4 descendants of his and her body succeeding to the said estate,
4 shall be obliged to assume, use, and bear the said surname,
4 arms, atid designation : And if the said heir-female so succeed-
4 ing shall happen to be married at the time of her succession,
* then her husband, and their heirs succeeding to the said estate
4 conform to the foresaid destination, shall be holden, bound, and
4 obliged to assume, use, and bear the said surname, designation,
4 and arms of my family : And also with this provision, as it is
4 hereby expressly provided and declared, that it shall not be leisome
4 or lawful for the heirs above written, or any of them, to alter
.' the destination above written by contract of marriage, or by
4 any other deed gratuitously to disappoint the order of succes-
,4 sion hereby established : And if any of said heirs, or descend-
4 ants of their bodies in all time coming shall do in the contrair
4 of the conditions and provisions above expressed, then and in
4 that case the contravener (but not the descendants of his or her
8S8 CASES DECIDED IW THE
* v
' body) shall ipso facto lose their right and title to the said lands
' and estate, and the same in that case shall fall, accrefcce, and
* appertain to the neM heir who would succeed, if the contra-
' vener were naturally dead : And it shall be leisome and law*
4 ful to the said ne*t heir to establish die right thereof in hfe or
4 her person either by adjudication, declarator, or serving heir
4 to the person who died last vest and seised therein before the
'contravention, or any other habile way 5 And the person so
* succeeding upon the contravention, and the descendants of bis
1 or her- body, shall be subjected to the same conditions and irri-
' tancses above expressed in all tkne coming.1 The dead con-
tamed no other provisions or limitations of any sort.
Mr. Makgill died without heirs of his body, and titles were
node up under the above disposition by his eldest sister Catherine.
She afterwards acquired certain other lands, which site disponed
to the same series of substitutes, and in precisely the sitae fbnn*
And under the same conditions as those contained in her brother's
disposition, to which she referred. Having no issue, and her
sister Isobel having a grand-daughter who was about to be married
to the Honourable Captain Frederick Maitiand, they bound and
obliged themselves by the contract of marriage ' to do no act or
' deed whereby the succession to the estates of Nether RankefDor
« and Lindores, conform to the settlement thereof made by the
< deceased James Makgill of Rankeillor, their brother, may be
* disappointed, or whereby the succession to tha Cupar Mnr
' Parks adjoining to Rankeillor, and now part of it, conform to
* the settlement made thereof by the said Mrs. Catherine Makgill,
« may be disappointed;
* On the death of Catherine, she, was succeeded by her itster laobd,
Who made up titles to the lands in terms of heir brother alrid sis-
ter's dispositions. She then executed a disposition in fkvoor of
her grand-daughter Mrs. Maitiand Makgill, on the nari-ative and
in terms of her brother and sister's dispositions ; and in virtue of
this deed Mrs. M&itland Makgill made up titles to and enjoyed
possession of the estates. As there was no effectual prohibition
against contracting debt or selling the estate, Mrs. Mutlfcnd
Makgill conceived that she was entitled to make tn cftftttl'of the
estate conformably to the dispositions of her brtrther aatf dieter,
And to impose additional fetters and restrictions upon the aub-
ttitittefe. She accordingly^ in 1819, executed, * deed of entail,
placing additional burdens and vseteictioa* upon the. htm ; and,
Among others, she ordained the heir in <poaaess0m.t9.jttj ova* a
fourth of the free y*nts of the estate to trustee*, (wfcom she Mmi-
nated by a separate dfed>) prohibited him ftom ecUing or
COURT OF SESSION. tt»
trading debt, and farfififed the various conditions and prohibi-
tions with irritapt and resolutive clauses. At the same time she
executed a disposition, by which she conveyed part of the lands,
and alsamerfourth of the free rent of the whole estates, to trustees,
for payment of debts, and of provisions to her younger children.
On her death in 1825, Mr. David Maitland Makgill, her grand-
son, (who was heir apparent under the former investiture,) grant-
ed a trusUbend to the pursuer, under which he adjudged the
lands from him, as lawfully charged to enter heir to his grand-
mother, apd thereupon instituted an action of reduction, conclud-
ing that the deed of entail executed by Mrs. Maitland Makgill
should be set aside in toto, and that the trust-deed should be re-
duced so for as it contained a disposition of the lands and i>t the
rents.
In defence it was maintained,
1. That an heir of destination, unless placed under restrictions
guarded by the statutory clauses requisite for creating a proper
jus crediti in the heirs-substitutes, is as much an absolute pro-
prietor as the entailer himself; and therefore there was nothing
to prevent Mrs. Maitland Makgill from executing an entail of
the estate, more especially as she not only did not contravene
the prohibitions in the investiture, but had merely made provi-
sions for carrying into effect the will of the entailer ; and,
8. That with regard to the trust-deed, aft the object of it was
to accomplish the discharge of onerous debts, and1 secure mode-
rate provisions to the younger children of Mrs. Maitland Mak-
gill, and as she was not debarred from burdening the estate' to
that extent, the deed was effectual.
To this it was answered, That an heir in possession under an
imperfect entail, whatever may be his powers in reference to third
parties, is bound by the conditions of the grant in all questions
with the other heirs : — that as he takes and enjoys under the eoo-
ditions of the deed, he is bound to respect these conditions, kind
has no power gratuitously to add to the burdens imposed by the
entailer; and therefore that both the deeds of entail and 6t trust
Were ultra vires of Mrs. Maitland Makgill.
The Court, on the report of the Lord Ordinary, unanimously
decerned in terms of the libel.
i
Loan President*— The defenders have no case at all; and w$eei,
after the varioas decisions upon this question, we must regard it as
settled, and are not entitled to open it op.
The ether Judges concurred.
Sfo CASES DECIDED IN THE
Pursuer's Authorities.-^. Wc 3. 1$3 ; Halket, Ftb. I6Vl6Gt% (1*41*); Qm-
don, Jan. 25. and Aug. 2. 1771, (15579); Menzies, June 25. 1785,(15436);
Campbell, June 28/ 18)5, (not rep.) ; Argyle Entail, Dec. 15. 1820, (not rep.)
Mackbhsy and Roy, W. &— J. Heriot, W.
No. 419* J. Taylor and Sons, Pummrz*— Jeffrey— HapkiHt.
B. Hall and Others, Defenders.— SoUOen. Hope—D. JTNiriL
Recompense — Bankrupt.— Held that a committee of creditors appointed by the
creditors to manage the affairs of a bankrupt estate, are not entitled to charge
a commission on their disbursements and for their actings. '
June 29. 1827. The affairs of Taylor and Sons having become embarrassed,
. ~ a meeting of their creditors was held, at which Hall and others
Lord Newton. were appointed a committee of management. They arcordingly
S. acted as such, and in the course of doing so they came under
personal obligations to the Earls of Hopetoun and Rosebery
for rents of farms hpld by Taylor and Sons, amounting to up-
wards of d£300, and they granted a bill for £1946, which they
discounted at a banking-office on behalf of the estate. Their
management was put an end to by a sequestration under the
Bankrupt Act, which was awarded against Taylor and Sons. In
rendering their accounts, they took credit for a commission of
£215, being five per cent, on their disbursements, amounting to
JP4088 : IS ; 4. The trustee w$s appointed by the creditors to
relieve them of their obligations, and to settle with them in terms
of their, account. This having been done, .and Taylor and Sons
having thereafter settled by a composition, and having been dis-
charged, they brought an action of accounting against Hall and
others, in which the only general point rased related to their
right to the commission, for which the committee,, with the ex-
ception of a Mr. Muir, insisted. The Lord Ordinary having re-
mitted to Mr. Paul, accountant, to consider this and other mat-
ters, he reported that it was his opinion ' that the committee
* ought to be allowed a compensation for their trouble, but that
* their commission, instead of being stated at fives, ought to he at
' 9\ per cent. ; and his opinion on the general point that an allow-
' anoe should be made rests on these grounds, — that while the or-
* dinary rule undoubtedly is, that committees of creditors receive
* no remuneration for their trouble, that circumstance arises from
' the nature of the duty committed to them, which is to auperin-
1 tend, and not to labour, — to make general examinations^ and to
* report, — not to conduct, settle, and incur the reqxKuribtkry oif im-
' portant transactions : That the present case, therefore, in which
COURT OF SESSION/ * 801
the -domniittee not only did all the ordinary duties of a trustee,
but interposed their personal credit for the benefit of the bank-
rupt estate, seems to be clearly an exception to the common rule,
and that two or three cases of a similar kind, in which an alldw-
ance was made to committees, have come within the knowledge
of the accountant.9
The Lord Ordinary * approved of the report, with the excep-
tion of die commission allowed to the defenders, and of new
remitted to the accountant to modify the same in consistence
with the views expressed in the note subjoined.1 That note was
in these terms : — ' As it appears to the Lord Ordinary that the
committee did not confine themselves to superintending the bank-
rupts in their management of the estate, but took an active
charge, incurring considerable personal responsibility, he agrees
with the accountant in thinking it reasonable that some remu-
neration should be allowed for their trouble ; but as their claim
stands on a very different footing from that of a factor or trus-
tee, he thinks the rate of 9\ per cent., adopted by the account-
ant as the rule of calculation, quite sufficient. It appears to
him, however, that the sum on which the commission is to be
calculated must be reduced considerably below that assumed
in the report. Thus he conceives, in the first place, that no
commission can be allowed on the Sd article of the charge, be-
cause he understands this article of £915 : 8 : 9 to be the com-
mission paid to the defenders by the trustee. 2d, As it seems
unreasonable that the estate should be subjected to pay com-
mission twice on the same sums, the committee ought not to re-
ceive any on such bills and acceptances as they merely handed
over to the trustee, or on any sum for which he has received or
was entitled to charge commission. 8d, Mr. Muir's declining to
take any commission must, in the Lord Ordinary's opinion, be
fadd to operate, not in favour of his co-commissioners, but of
the creditors at large ; of course, each of the others should be
credited with one-fourth of the commission only.'
Taylor and Sons having reclaimed, the Court altered, and
found no commission due.
*
Lord Baloray. — This is a very general question, and of consider-
able importance. I doubt extremely whether a committee who
' are elected by a set of creditors are not understood invariably to
act gratuitously. If they stipulate for a remuneration from the
creditors, good and well ; but where, as in this case, they are all in
one boat, and endeavouring to extricate themselves from the general
wreck, I do not think that they are entitled to demand a recom-
pense. They must unquestionably be kept indemnes, and accord-
MB CA8E8 DECIDED IN
. fcgfty thb enamittee m lAKevtd iron aU respoBatpattj. In-
deed their leseensibiflHy was Bttte or nothing, became tixy »**-
peeed wejelj a* a owwta*,imd of poarae had their i>elief agaisrf
ft* other creditors.
L«U> -Gjuupis,— I Bjm of the same opinion. If those who axe selected
to attend to the affairs do not stipulate for a reward, they cannot
dpxge ft. I»«U such eases, soma who are more able than others
, take the active management ; bat I never heard of such a claim
as this being made.
Lord Crawib. — The case may be different where a person pecu-
liarly versant in any particular matter is employed by the etedi
tors; as, for example, a writer to the signet or an accountant; but
I agree as to the general rule which has been laid down.
The Lord President concurred.
• *
G. MtJAixuM, W. &-i*A. Dowlas, W. 8.— Aguals.
No. 420. Cokmel M'lmrss, Raiser.— X BdL
■- Trustees of Mrs. Frances M'Alustbb. — GremMdi*.
Mrs, Flora M'Axlistbb, &a~£o*.-<kn. Hopcr—lfNdL
- Trostbks of Akoos M'Allistu^— Burta^/wrd
Mrs. M'Donald and Qthm^Fletcker.
Colonel WTAllistrr^- JO. ofF. M<mcr*ffi~J4
Trusters of General Keith M'Allistzb.-
• JS. J* Robcrtton.
Competing.
Ttolsm**/— Foreign— /ftferett.— 1. — Interpretatioa of a wiH executed is India.
2*-*- Interest on legacies bequeathed by rath a will doe from twete
, atyer the testator's death.-^3.-*Rate of interest on such legaciea,— 4.— On
expense of remittance from India fall*.
June 29. 1827. The late Colonel Norman M'AUieter, a native of Scotland, in
IstDivibiok. *€ ^MBi India Company's service, and Governor of Prnce of
Lord Meadow- Wales' Island, where he was domiciled, was lost at sea in the month
*■?*• of August 1810, in the course of a voyage from that island to
China, with the view of returning to* Britain. By tomeaet of
parties, his death was held to have taken place oa the 15$ of
that month. He had no lawful issue ; but ho had two **ural
daughters, Frances and Flora. He had three brother* tptifbom
he was die youngest*) Alexander, Major Geaeaal StUb* and
Colonel Matthew; and hehadalso teveralttsteve* aiatinpaTtM*^
lar Susanna and Margaret, the wife of Mr. JTSaflaliL Heiefta
vill, dated at Prmoe of Wales* Island, wrfceo fey tutartif fct the
English form, wrA a relative oeriitil and letter
COURT OF SESSION* MB
Uut neither the fcodtcil nor the tetter Altered wto the present ques-
tion. Tbewiil, sotoastiMiterial^WBsiothesetgtttisN-^Igi^aiid
bequeath to each ef my sisters Susanna and Margaret £800 ster-
ling each, with an additional sum of -££00 sterling to be given
to Margaret, which, with the aforesaid iP200,isrtobe settled upon
herself for 1%. I give and bequeath to my daughter Frances the
sum of ^15,000 sterling. The said Frames IPANkter is now in
England, and goes by the name of Frances Johnstone-— a cir-
cumstance known to my brother Keith. I give and bequeath
to my daughter Flora M'AUistcr the sum of j&10,000 sterling.
The said Flora McAllister is now in England, and goes by the
name of Flora Scott She is under the care of my friend Wil-
liam Burnie, Esq. The fortune which I thus bequeath to each
of the above-mentioned children, the said Frances McAllister
and Flora M'Allisteiyis to be left bearing interest in India, and
placed in the hands deemed the most safe by the trustees, who
will take care that collateral security be taken for the whole
property invested1 in this way, which is to be Iteft to accumulate
for the benefit and behoof of the said children until they are
90 years of age. At the same time ^b much of the interest of
their fortune is to be remitted to England annually as shall de-
fray the expenses of their education, provided that the sum re-
quired shall not exceed ,£900 sterling, for education and main-
tenance together, until they are 14 years of age; and after they
have attained that age (14), should their guardians, who shall
be hereafter mentioned, deem it necessary, they are then to re-
ceive each ^300 sterling annually until they are 20 years of
age, when more may be allowed them, should their guardian*
deem it necessary. In the event of the death of the said Frances,
McAllister without lawful male heirs, her sister Flora McAllister
is to inherit and receive thewhole and every part of thesaid Frances
M'AHiater's fortune ; and in the event of the death of Flora
McAllister without lawftil male heirs, the above-mentioned Fran-
ces McAllister is to inherit and receive the whole and every part
of the said Flora Minister's fortune ; and in the event of the
death of both these, Frances M'AlKster, and Flora M-Affiiter
her sister, and failing of them both and their lawful male heirs,
I bequeath the whole and every past of the fortune of Frances
McAllister and Flora McAllister to my brother Keith M'Aflfater
and hi* lawful male heirs.' There then followed a series off substi-
tutes, and a nomination of executors and guardians to his daugh-
ters, after which the dfeed proceeded as follows:— < Should Frances
c M'AHister or her sister Flora M'AlKster marry befot* tbtey «e
♦ 40 years of age, they wiM forfeit the whole and every paifc of
86* GASES DECIDED IN THE
' their fortune bequeathed to them by me ; and after the sad
' Frances M'AUister pod Flora McAllister are 80 years of age,
€ they may then marry ; but whomsoever they marry must have
' the full consent and approbation of two of the trustees and
* guardians above named, otherwise they forfeit every shilling
* of the fortune bequeathed to them by me. And whomsoever
< the said Frances M'AUister and Flora McAllister marries, after
* they are 90 years of age, whh the full consent and approba-
' tion of two of their trustees and guardians, shall and will take,
* and shall continue hereafter lawfully, him and his lawful heirs,
* both male and female, to take the name of M'AUister; otherwise
( the above-named Frances M'AUister and Flora M'AUister, and
'their husbands, and their male and female heirs for ever, shall
' forfeit the whole and every part of the fortune bequeathed to
* them by me in this or other will or wills : Provided, how-
* over* that the above-named Frances McAllister and her sister
* Flora M'AUister have the full consent and approbation of the
* majority present of their trustees, not less than two, to marry
' at the time above specified, they will, and in that case have the
c whole sums heretofore mentioned and bequeathed to them by
* me; which sums, however, are to be invested by the trustees
* and guardians' in purchasing lands in Argyleshire, if possible to
* be procured in that county; which lands are to be entailed on
* the male heirs of the two sisters, the above-named Frances
( M'AUister and Flora M'AUister. I leave and bequeath to ray
' brother Keith -£10,000 during his life, which sum is afterward*
c to revert to Frances M'AUister and male heirs. I bequeath to
' my brother Matthew M'AUister the sum of JP5000 sterling dur-
' ing his life, which is afterwards to revert to Flora M'Alhster
< and male heirs ; failing them, to Frances M'AUister.* After
some other legacies, the wiU proceeded in these terms: — * I give
* and bequeath the whole and every part of my landed property
* and estates of Kernhill, with any other lands that I may have,
4 to my daughter Fiances M'AUister and her lawful male heirs ;
* and failing of the said Frances M'AUister and her lawful male
' heirs, I bequeath the above-named estate and lands of KernhSl
' to my daughter Flora M'AUister and her lawful male bek* ;
( and failing of them, I bequeath the above-named estate and
* lands of Kernhill, together with every other part of their pro-
4 party* to my brother Keith M'AUister and his lawful male
< heirs ; and failing of than, I bequeath the above-named estate
« and lands of Kernhill to my brother Matthew M'AUister and
1 his lawful male heirs ; and failing of them, I bequeath theetfUte
* and lands of Kernhill to my nephew John McAllister aad Us
COURT OF SESSION. 86*:
c lawful male heirs ; which, however, I have now burdened with
' ^100 sterling a year for life to my Bister Peggy. All the rest '
* of my property, with whatever may fall or become due to me,
* I bequeath and give to my brother Keith.9
Under this deed, the pursuer Colonel MTnnes, Captain John
McAllister, and General Keith McAllister, were appointed execu-
tors,—the two former of whom were to administer to the funds* in
the East Indies, and the latter in Britain. The funds, however,
were situated entirely in India.
The executors in India proceeded to realise the estates by con-
verting them into cash, and investing them in promissory notes of
the East India Company. In doing so, they employed the house
of Fairly, Fergusson, and Company of Calcutta as their agents,
who opened three accounts in their books,—- one for the estate of
the testator, — another for the executors in account with Miss
Frances McAllister, — and the third between them and Miss Flora*
To the credit of that of Frances they placed promissory notes to
the amount of <?15,000, and to that of Flora ^10,000, with in-
terest from the date of the death of the testator. These accounts,
however, the executors stated, were opened merely to enable them
to have a more distinct idea of the matters placed under their
management, and pot as a separation of the funds affecting the
rights of these ladies. In making the conversion from sicca
rupees into sterling money, the executors estimated the sicca rupee
at 2s. 6d. sterling, which was the rate of exchange adopted by.
the East India Company.
On attaining the age of 20, Frances and Flora M'AlUster,
with the requisite consent, entered into marriages, — the former
with Angus McAllister of Balinakil,— and the latter with Keith
McDonald McAllister. Contracts of marriage were at that time
respectively executed and ratified by them when they attained the
age of SI. Frances, by her contract, conveyed the whole interest
which she then had under the will to trustees, excepting the lands
of Kernhill or Clahaigh, but reserving «£S000 (afterwards limited
to £1500) for outfit to herself and husband, and provisions to a
certain extent in favour of the children of the marriage ; but
always provided that the same should be agreeable to. the will.
In like manner Flora, by her contract, conveyed to trustees, ia
similar terms, the whole interest which .she then had under the
will. Thereafter the bustyand of Frances having become insol-
vent, she, along with him, executed a conveyance to trustees for
his creditors of her whole means and effects not included under
the disposition in the marriage-contract, and she soon afterwards
died without male issue, but leaving a daughter.
CASBS DECIDED IN THE
in the mean while, Colonel Matthew M'Allistor* who was the
heir of conquest of hit brother, and a? such entitled to succeed to
Ktmbiil, made op titles to it in that character, and in a proem
which was brought against him, it wafrfound that he had thereby
forfeited dll light to the liferent of the <£«*¥) provided by the
wilt*. ' - '
Virions disputed having arisen asr to the "respective rights of the
parties under the will, Colonel M'Irmes, as die surviving executor,
(the other executors, General and Captain McAllister, beiqg both
dead,) raised * procefis of itultipkpoiadung. In this process
appearance was made for the trustees Under the contract of Mrs.
Frances M'Allister^-for those under the trust^conveyance fay her
t0 her husbaad's creditor*— <br Mrs, Flora and her trustees — for
Mrs. Margaret McDonald, the sitter of the testator— for Colonel
Matfiie w M*Alkster— and for the trustees and executors of Major
General Keith McAllister, the residuary legatee.
After lepeHaag an objection' to the jurisdiction cf the Court,
the Lewd Ordinary appointed the opinion* af Mr. Solicitor-Gene-
ral Copley, Mr: Sergeant Bbsanquet, avid Mr. ShsdweU, to be
taken as \o the import and effect of the will on the rights of thai
ptatiea under the English law. These opinion* having been ob-
tained, his Lordship then reported the cause upon Caaes, in which
the following questions were discussed : —
1. Whether these had been an effectual separation or transfer
frdmthe general mass of the legacies of .£16,000 and £10,000
provided to Frances and Flora, by the accounts baring been
opened by the executors with their agents in India ?
The Court found, < That nd effectual sepsamticm or transfer ha*
« been made, in term of the will of Governor McAllister, of any
' pstttof the turn bequeathed to the late Frances or to Flora
* McAllister from the mass of the testator's fortune, and Aat no
« particular fund or securities haive been effectually appropriated
♦ Iter the payment of these bequests.?
* At what rate, and at what time, the conversion into staring
money was to take place ; and whether «he legatees were -entitled
to Indian interest, and die accumulations thereof made while the
fluids were in India; add if so, whether that interest was to be
antaffcfted from the dayof the-deathdf the testator, or whethcq
aJtfotfdit^ to the English rule, it -was- due from « 4«atafBonth
stfter that period ; and further, whether the cxpeu* ofuimftnare
wife tonsil upon the particular, or on the tie&dua^Ugtfml
The Cewrt found, • That a mm ef .sicca nipee^ e^urvalsnt to
m ■ ■ n > * ****^-^f^*^^—M^^^ai*»i
9
• dee the next (Sis*.
COUBT OF SESSION. 8W
£15fiOf> sterling, according to the eunent.mteof exchange is
it stood on the 15th of August 1810, which hat been, hdd a*,
the {Utf of the testator's death by the consent of parties, with
* proportion corresponding thereto of the accumulation of in-
terest (actually made an the testator's fortune in India horn that'
date till Frances McAllister attained the age of twenty yeajv,-
(deducting from the said interest and accumulation* all pay-
ments duly made on her behalf,) must be remitted to Scotland
at the expense of the legatee,— such expense to be paid out ef
the said accumulated fund, in order to ascertain the amount to
be invested in the purchase of lands, as after mentioned : That
a. sum of sicca rupees, equivalent to ^10,000 sterling, aeeording'
to tfee current rate of exchange on the day of the testatorV death
as before mentioned, with a proportion corresponding thereto of
the qpcupnulations of interest actually made on die testator'* ftr-
tune in India from that date till Flora McAllister attained the
age of twenty years, (deducting in like manner from the said
interest and accumulations all payments duly made on her be-
half,) must in like manner be remitted to Scotland at the ex-
pense of the legatee,— -such expense to be paid out of the said
accumulated fund, to be also wrested in the purchase ofy and
as after mentioned.'
& Whether the sums of .£15,000 and £10>QQO vested abso-
lutely in each of Frances and Flora; or whether they were to be
invented in lands under a simple destination in tenuis of the will,
or in those of a strict entail?
The Court found, < That Frances McAllister, who married
' with the consent required in the will of the testator, having died
4 without male heirs, and Flora McAllister being also married
« pith consent as aforesaid, the said two sums of ^£15,000 and
< «£10,CKX\ with the said respective accumulations thereon, trader
' the deduction foresaid, must be invested by the executors of the
*. testator in die purchase of lands in Argyleshire, if possible to
' be procured in that county, to be settled upon die said Fiona
< M1 AUister and her heirs-male* under the fetters of a strict en-
4 tail, as understood in the law of Scotland, the deed to bo pin-
< pared at the sight of the Court; and find it unnecessary, hoc
( statu9 to give any directions be to the extent of the destination
' to be inserted in the said deed, or aa to any other particulars
' thereof.'
4. Supposing that the ladies had not such an absolute right in
the principal sum** whether the interest belonged to them * and if
so, how long were they to be entitled to draw Indian interest ? And
if they were to draw British interest, whether it was to be at the
CASES DECIDED IN THE
-nte rf four per -cent, according to the rale of the Court of Chan-
cery in England*, or qf five per cent. ?
The Court found, f That the executors of the testator most,
c out of the trust-estate, account for the interest actually made in
' India on the said sum of i? 15,000, and accumulations corre-
* spending thereto, under the deductions foresaid, from the period
' when die said Frances McAllister attained the age of twenty,
* (when the. said accumulations for the purchase of lands shall
« stop,) until the same shall be remitted to Scotland, (the expense
' of which remittance to be paid by the particular legatee,) and
' at the rate of four per cent per annum from that period, until die
< same be invested in land as aforesaid, or consigned in one or
* other of the chartered banks : That the said executors of the
* testator must, out of the trust-estate, account for the interest
* actually made in India on the said sum of £10>OOQ> and ac-
* cumulations corresponding thereto, under the deductions fore-
' said, from the period when the said Flora McAllister attained
' the age of twenty, (and when the said accumulation for the.pur-
* chase of lands shall stop,) until the same shall be remitted to
* Scotland, (the expense of which remittance to be paid by the
' particular legatee,) and. at the rate of four per cent, per annum
' from that period until the same be invested in land as afbreaaid,
* or until the same be consigned in one or other of the chartered
< banks.9
5. On the supposition that the principal sums did not belong
to Frances and Flora, and that the interest did, whether -tiiit in-
terest had been effectually conveyed to the trustees under their
contract of marriage ?
The Court found, ' That the said interest accruing on the
' former of these accumulated sums from the time that the ami
* Frances McAllister attained the age of twenty to the period J)f her
' death, belonged to her absolutely, and was effectually conveyed
* to the trustees under her contract of marriage ; and that the in-
' terest accruing thereon, subsequent to the death of: die said
* Mrs. Frances McAllister, and also the whole interest accruing
' on the latter of the said accumulated sums from the time when
' the said Flort M'AUister attained the age of twenty, until both
' the said accumulated sums shall be invested in land as
' said, belong absolutely to the said Flora McAllister, anil
< effectually conveyed to the trustees ultylejr her contract fcf mar-
•riage.' -+£ .. 3^Lfc
6. As a separate sum of £10,000 had been bdfHfttfbed to
Frances, subject to the liferent of General Keith 'M'AKsKr, and
as he was now dead, in what manner were the respective rights
COURT OF SESSION. 869
of the executors of the General and Frances jn that fund to be
disposed of, and at whose expense was it to be remitted from
India?
The Court farad, ', That the sum' of «£10,000 sterling be-
* queathed to Frances McAllister, subject to the liferent of Gene-
1 ral Keith M'Allister, was payable to her in Groat Britain, in
' sterling money, as on the 9th March 1890, being the date of
* the said General Keith McAllister's death,— the expense of remit-
* tance falling upon the residuary legatee, — and that interest of the
4 said sum at the rate of four per cent, per annum from the 15th of '
' August 1811, being a year after the date of the testator's death,
4 down to the said 9th March 1890, is payable to the trustees
( of the said General Keith M'Allister, and that the said sum of
' £10,000 itself, with interest thereof at four per cent, per annum,
4 from the said 9th March 1820, belonged absolutely to the said
4 Frances M'Allister, aqd was effectually conveyed toiler said
4 trustees under her contract of marriage.'
-7. Whether the marriage-contract of Frances was effectual so
far as related to the provisions of outfit for herself and husband^
and for her children ?
The Court found, < That the sum of ,£2000 provided in the
4 said Frances M'AllisteFs marriage-contract, afterwards restrict-
* ed to JP1500, for outfit, as also the provisions to 'daughters and
4 younger sons, contained in the said contract, are legal and com-
4 petent, and consistent with the foresaid last will, and the $ame
* are .payable out of any funds over which the trustees of the said
4 Frances M'Allister has an uncontrolled or unrestricted power.'
8. As the right of Colonel Matthew M'Allister to the liferent
of the £5000 had been declared forfeited in consequence of tak-
ing up the estate of Kernhill, whether that £5000 was to be re-
garded as a surrogatum for the estate ? And if so, whether that
liferent interest did not belong to Frances during her life, and
fell under the conveyance to the trustees for. her husband's cre-
ditors, (as having been excepted from her. marriage-contract,)— ^
and whether, by the death of Frances without male heirs, the
liferent now belonged to Flora and ber trustees ;— and, sepa-
rately, at whose expense the JP5000 were to be remitted from
India, and at what rate and from what time was the interest to
be payable? And,
9. Whether the annuity of i?100 in favour of Mrs. M'Donald
was a subsisting right} and whether it was payable out of the in-
terest of the ,£5000, or from what other fund ?
On these points the Court found, « That the sum of .£5000 bo
' queathed to Flora M'Allister, subject to the liferent of Colonel ,
vol. v. ' » 9 K
870
CASES DECIDED IN THE
Matthew M'Allister, w payable in Great Britain in fading
money, the expense of remittance falling upon the residuary
legatee : — that Colonel Matthew McAllister, having takea the
estate of Kernhill, forfeited his liferent interest in the said sum
of £5000, and therefore repel his claim thereto in this proem;
and find that the said liferent interest so forfeited by him de-
volved upon Frances McAllister during her life, and after her
death devolved upon and now belongs to Flora M'Alliattraod
her male heirs ; and that so much of the said liferent as de-
volved upon the said Frances McAllister does not Ml under
the conveyance in' her contract of marriage, but is payable to
the trustees of her husband and his creditors, subject to the
burden or deduction after mentioned :— that the said aim of
<£5000 bears interest at the rate of four per cent, per annum
from the 15th August 1811, being a year after the date of the
testator's death:— that the annuity of £100 per annum provided
to the testator's sister, Mrs. Margaret M'Donald, and declared
to be payable out of the lands of KernbiH, must now form a pre-
ferable claim against and burden on the forfeited life interest
of the said sum of .£5000, and is payable to her in Scotland,
free of the burden of the expense of remittance, during her na-
tural life, or so long as the forfeited liferent interest of Colonel
Matthew McAllister in the said «£500G shall be sufficient to
answer said annuity,— beginning the first term's payment of
said annuity on the 15th day of August 1812 for the year
immediately preceding :— that the burden of the said annuity
must be borne by the trustees for the husband of the said
Frances M'AUister and her creditor*, and by the said Flora
M'Aliister and her male heirs, according to their respective in-
terest* in the said forfeited life interest.; and remit to the Lord
Ordinary to ascertain and fix the proportions in which the bur-
den of the said annuity is to be so borne by them: Find that
the said sum of £5000, upon the death of the said Colonel
Matthew McAllister, will devolve upon the said Flo* McAl-
lister in terms of her1 father's settlement ; and that die same,
being a ^reversionary" right, was not affected by the cooveyasce
in her marriage- contract/
10. Whether the contracts of marriage were binding,— the £*"
glish lawyers being of opinion that in England they would not
be so?
The Court found, < That the above two xam tracts *f n*mF
' of the said Frances and Flora McAllister, duly connW b7
1 them, are valid and effectual deeds to all intents and porf08*
c whatever.'
COURT OF SESSION. 811 ~
Lastly, Whether a double legacy, each of £200, or only ore,
had been provided to Mrs. M'Donald ; and if so, whether her right
had fallen to her hueband ; and whether certain payments made
to her under peculiar circumstances by her brother, the residuary
legatee, were to be imputed in extinction of the legacies, or not ?
The Court found, ' That the said Mrs* Margaret M'Donald
is entitled to two legacies of <£200 each claimed by her, with
interest at the rate of four per cent from the said 15th day of
August 1811, being a year after the testator's death; and that
these two sum* of £200 each, and interest thereof as aforesaid,
must be remitted to Scotland at the expense of the residuary
legatee; and that tbe.said two sums, and interest thereof, are
payable to the said Mrs. Margaret M'Donald herself; and
do not fall under the jus mariti of . her husband: Repel the
plea of compensation or retention made on the part of General
Keith McAllister's trustees, founded upon the sums paid by
him, or on his account, during hi* life, to the said Mrs. Mar-
garet M'Donald ; and remit to the Lord Ordinary to apply the
abore findings to the claims of the several parties, and to cause
a state of the funds, and of the interests of the parties, to be
made up conformably thereto, and to rank and prefer them for
the respective sums due to them accordingly/
Mackenzie and Innes, W. S« — J. W. M'Kenzie, W. S. — M. N.
M'Donald, W: S— E. Hoggan, W. S—J(. B\jrn, W. 8.— Camp-
bell and Clason, W. S. — J. Bridges, W. S. — Agents.
Col. M. M'Ajllistsb, Pursuer. — D\ of F. Moncreiffi-^Jamesoni No. 421.
Trusties of Mrs. Flora McAllister, Defenders. — $d.-Gen.
Hope—MWeW.
Decree in #W— Ae« S»dic*ki. — A legacy baying been left under an Eng lfcfc will to
the heir of caaqfueat o£ the testator, who by the Mint will ineffectually bequeath-
ed hit Landed estate in Scotland to another party ; and the heir having taken
up the estate, and an action having been brought against Mm; concluding -that
he should denude of the estate, or otherwise have tow right to the legacy ja\selar*>
ed forfeited ; and haviag been allowed to take the opinio* of JfcgUtb coimsel
to. show that (us right was not forfeited ; but Apt having done so, and having re-
lied on information from an English solicitor that his right was forfeited ; and
having thereupon moved for and obtained absolvitor from the eonetaekra 4er de-
nuding, and decree Against hkn of forfeiture of the legacy-r-Held not entitled to
•pen mp the decme, on the sUfgitww that the inlormatiou of. the. spUpftor was.
erroneous.
Tmis esse was oonnected with the preceding °w* By the will June 89. 1827.
of Colonel Jfarman ATAliirter, .he bequeathed < to my brother isr Dmsroir.
'Matthew the sum of £5000 sterling fjuriug bip hfc> which is Lord Meadow-
' afterwards to revert to Flora IT Allister mm} her jnaie heirs, and D '
8*8
878 CASES DECIDED. IN THE
« failing them to Frances McAllister ;' and the testator, by the
same deed, bequeathed his estate of Eernhill or Clachaig to
them and a series of substitutes. As that estate had not been ef-
fectually disponed to them, .and Colonel McAllister was the heir
of conquest, he made up titles, and took the estate in tbat charac-
ter. These ladies, together with General Keith McAllister, (one
of the executors, and the residuary legatee under the will,) then
brought a summons of declarator against the Colonel, concluding
that he should either be bound to denude of the « lands of Clach-
' aig in favour of the two ladies, in term* of the destination of the
'.will; or otherwise, in the event tbat he should be found entitled
' to refuse to da so, that it ought to be declared that the said Mat-
' thew McAllister, his heirs and successors whatsoever, have, by
' so doing, forfeited and lost all right, title, and interest in and to
' the said last will and settlement,, codicil, and letter of instruc-
tions, or to any legacies, bequests, provisions, and destinations,
4 or any clauses of any description conceived, and to all sums of
4 money, estate, and effects whatsoever, heritable or moveable,
'real or personal, thereby in any way left or conveyed, directly
* or indirectly, immediately or eventually, 'to and in favour of
' him, or of his foresaids, in any way, or in any event whatsoever ;
4 and that neither he nor any of his foresaids can, in any event,
* claim the same, or any of them, or take apy benefit whatsoever
c under the said lasi will and settlement, or letter of instructions
4 relative thereto.'
In defence, Colonel McAllister pleaded, That although he had
obtained possession of the estate, yet it did not follow tbat he was
^ bound to renounce his rights under the will, and particularly his
right to the legacy.
Lord PitmiUy appointed a Case to .be prepared, in order c to
4 obtain thereon the opinion of one or more.Englisb counsel on
c the will of Colonel M'AJlister, with reference to the second or
4 alternative conclusion of the libel/ A Case was accordingly
prepared, and transmitted to a solicitor of great experience and
high respectability in London, who, on perusing it, wrote to the
pursuer's agents that a similar case had recently been decided in
England adverse to bis plea ; and after referring to certain other
cases, he observed, that ' I consider it now as quite settled, ad-
4 versely to your client, Colonel McAllister, that one cannot act
4 adversely to a will or the intention of a testator by taking, on
4 account of its informality or otherwise, what was meant for ah-
4 other, and at the same time take benefit from another part of
' the same instrument. I am therefore of opinion that it it vain
' for your client to contest the point. Were it nay own ewe, I
COURT OF SESSION. 873
c would not be at the expense of feeing counsel in it. However,
* if the client or you think otherwise, I see no objection to the
* counsel proposed."' In consequence of this opinion,** Colonel
McAllister lodged a minute, in which he stated that he had come
' to the resolution of allowing the pursuers to take the benefit of
* the will as to the other provisions, provided they allowed decreet
' to go out, finding that the defender was entitled to take up
* the estate of Clachaig and others, as described in the summons,
' and that the same are now absolutely and irredeemably his pro-
« perty.1 r
•• To this it was answered for Frances and' Flora McAllister and
their tutor ad litem, That as they were under age, they could not
enter into the proposed agreement, but they left the case to be dis-
posed of by the Lord Ordinary. His Lordship, in consequence,
decerned * in favour of the pursuers, in terms of the second 0*
* alternative conclusion of the libel, for having it found that the
' defender, by refusing to denude of the lands of Kernhill or
* Clachaig, has* forfeited all right and interest to the last will and
* settlement libelled.1 As his Lordship had not assoilzied him
from the first conclusion, the Colonel gave in a representation on
that point, in consequence of which, his Lordship assoilzied him
from that conclusion. He afterwards discovered that General
Keith McAllister had died on the day when the interlocutor was
pronounced, and to obviate any objection, he raised a process, of
wakening and transference against his trustees, and obtained de*
cree in absence of transference in statu quo. ^ 1
In the mean while Frances had married, and the trustees under
her marriage-contract, but not her husband, entered appearance.
By a mistake, the trustees of General M'AUister, who had not
appeared, were sisted in place of them. An interlocutor was then
pronounced, of new assoilzieing the Colonel from the first conclu-
sion, and decerning in terms of the second, whereby his right un-
der the will was declared forfeited.
When the opinion of counsel was taken in the preceding case
as to the effect of the law of England on the rights of parties un-
der the will, they stated that they were of opinion * that the life
' interest given to Colonel Matthew McAllister in the ^5000 has
' not been forfeited by him by his succession to the real property
* mentioned in the will. The will has not in express terms raised
* a case of election ; and it is a rule of the English law, that where
* a will, imperfectly executed, does not in express terms raise a
■« case of election, an heir at law is not put to his election merely
' because he is made a legatee/
' In consequence of this opinion, Colonel SFADister raised a
874 CASES DECIDED IN THE
gammon* of reduction of the decree of forfeiture* in which his
main grounds of redaction were,
1. That baring, during the dependence of the process, been
not merely ignorant of the fact as to how the law of England
stood upon the subject, bat misinformed as to that fact by a pw-
son in whose information he had reason to place confidence, he
was entitled to reduce the decreet as erroneous, and that he could
not competently be met with the plea of res judicata ; and, .
£. That the proceedings were irregular, seeing that the bus*
band of Mrs. Frances-had not concurred in the action, and that
the trustees of General McAllister had been sisted in place of her
trustees.
To this it was answered,
1. That the decree which was pronounced had been obtained
by Colonel McAllister himself in foro contentioso, and therefore
formed res judicata between the parties*
SL That he could not pretend ignorance of what he now aver-
red to be the fact, that the law of England was in his fwronr,--*
because he rested upon that in defence, and obtained an order for
leading evidence of that fact by the opinion of counsel ; and that
if he was misinformed, and acted upon that erroneous information,
he could not on that account deprive the defenders of the right
rested in them by the decree of the Court :— that besides, as mat-
ter of law depended upon the opinions of men, and these opi-
nions might vary at different periods, it would be attended with
dangerous consequences to allow decrees to be opened up, on the
allegation that a new and different opinion had been got ; and,
8. That the objections, in point of farm, were defences either
proponed and repelled, or competent and omitted.
The Court, on the report of the Lord Ordinary, repelled the
reasons of reduction, and assoilzied the defender.
Lord Balpray. — I think the question in this esse is certainly one of
Scots law, whether or not what passed before in the action of de-
clarator was such as to constitute a decree in foro, — in other wotrk,
on the point, whether, by the English law, Colonel Matthew M*AIB-
ster's taking up the lands was sufficient to bar him from the legacies ?
whether what took place here was enough to constitute a- decree ia
foro? Looking at the practice in this Court, it was. The Court may-
hare proceeded in error; but it was his duty to have informed him-
self of the fact as to the law of England on the subject ; sad if he
had it in his power to get correct information of it, I am afraid he
cannot now be allowed to open up the former decree. He ought to
have informed himself then. If effect were te be given to (fas plea,
every decre* la foro might be opened op, on a party saying I have
COURT OF SESSION. 878
now got, the opinion of gentlemen high at the Bar in my favour ; if I
had gone to them, before, they would hare informed me so and so
was the case ; whereas the gentleman I went to said otherwise, and
I framed my conduct accordingly.
Your Lordships may recollect a question that occurred as to a
second action in a case from Berwickshire as to redaction of a will.*
A party came forward and said, that at the time of the former ac-
tion he was informed so and so, but that the statement should hare
been different. He came then forward on the plea of res noviter
▼eniens ad notftiam. The answer was, If it was in your power at the
time to get at the fact", you must be supposed to hare proponed it,
and that it was repelled ; and if it was competent, you omitted it.
It is precisely the same thing here ; and I think the party has
foreclosed himself by his own proceedings. It was be himself who
insisted for decree, and therefore it was a decree in foro ; and he can*
not now be allowed to open it up.
Loan Gillies.— I am of the same pinion. If he was mistaken Of
misinformed, it was as to a fact of which he ought to have informed
himself correctly. If he did not know, he was bound to know the
law of England on the subject.
Lord Prbsidknt*— How can the law of England be res noviter ve-
niens ad notitiam ? There it is, and there it was. He says he in-
quired, and was told the law of England was so and so.
Lord Crajgie. — I apprehend there is a peculiarity in this case. It
was not the law of Scotland that was in question. Here the party
was misinformed as to the law of England, and in, this way the party
was misled ; and he has been grossly and egregiously, it seems,,
misled as to the nature of his rights, viewed according to the law of
England ; and therefore I am at a loss to see how we can bar this
party from his relief.
With great deference, it appears to me a case very peculiar in . its
nature. I have no objection to your deciding the claim on the me*
rits just now ; but I have considerable doubt as to the propriety of
barring the party from relief.
Pursuer's Authorities— \. Stair, 1. 44; 4. Mack. 3. 1 ; 4. Ersk. 3. 3; 4. Bank.
7.22.
Defenders' Authorities —Kant* Eluc. Art 28 ; Dundas, March 1 0. 1809, (F.C.J
A. Clason, W. S-— M. N. MDonald, W. S.— Agents.
9 His Lordship did net mention the name of the case.
876 CASES DECIDED IN THE
No* 422* Representatives of Andrew Soutar, Pursuers and
Advocators.— More.
John Soutar, Defender and Respondent.— Jaf7i^o»—/w>ry.
Bill of Exchange— Sexennial Prescription— FiXation— Relief. ~K joint acceptor
of a bill holding a letter of relief from two co-acceptors, having retired it in part.
and received two other bills from them for the amount ao paid by him— Held, in
an action at his instance, founded both on the letter of relief and these bills*—
, 1 . — That his claim was not barred by the sexennial prescription, or the vitiation
of one of these bills ;— and, — 2. — That the presumption that a partial payment,
marked generally by the holder of a bill which had been discounted, had been
made -by the acceptor, may be redargued by a special receipt in favour of the
drawer when the bill was finally retired.
June 89. 1897. Thomas Soutar, tenant in Logie, the defender's brother, hav-
2d Division. *n8 fcUei* into arrear of rent, the late George Soutar bis father,
Ld. Mackenzie, and Andrew Soutar his uncle, granted along with him a bill,
M'K. dated 16th July 1812, to his landlord for the amount; but at the
, same time, George and Thomas addressed to Andrew a letter,
bearing that they would retire it, as he (Andrew) had no concern
in it, and was to sign it to accommodate them. This bill having
been protested, letters of horning were raised, on which Andrew
was charged to make payment. On this (according to the alle-
gation of the pursuers) Andrew and George paid each £85 in
cash, and the remaining ^180 was raised by discounting a bill,
dated 15th January 1813, drawn by Andrew upon and accepted
by George and Thomas. This bill fell tfue on the 16th of April
1818, on which day Andrew (as the pursuers alleged) paid j£65,
the holder marking on the bill a general receipt in these terms:
— * Received of the within «»?65 sterling.9 ■ Having been subse-
quently protested by the holder for non-payment of the balance,
Andrew paid up the amount, and received the bill and the instru-
ment of protest, there being a receipt on the bill in these terms:
— ' Received payment from Andrew Soutar as indorsee,5 and on
the instrument of protest a special receipt for the whole sum, as
having been received from Andrew. There being still £85 of
the original i?300 bill due to Andrew, and £15 of expenses, for
which no document was held by him, he took a bill for jPIOO,
dated 10th April 1813, being the amount of these two sums, from
George and Thomas; and on ThomasY bankruptcy, which oc-
curred shortly afterwards, Andrew ranked for this bill on his
estate, and drew a dividend. Previously to this he had obtained
letters of homing on the instrument of protest on the ^180 bill,
on which he gave Thomas a charge, followed by denunciation and
letters of caption ; but as the protest had been taken subsequently
to the partial payment of £65f deduction was necessarily given of
COURT OF SESSION. . 877
that sum in the charge. George Soutar died in 181 4> but the
defender (who was his heir and representative) made several par-
tial payments to Andrew at different times, the latest on the 29th
of July 1819, being beyond six years from the date of all the bills
above mentioned having fallen due. The defender, however,
having refused to make any further payments, Andrew, in No-
vember 1819, raised an action against him before the Sheriff of
Forfar; founded on the two bilk of ,£100 and .£180. There-
upon the defender's agent wrote to him, admitting a balance to
be due of £56 : 8 : S, which would have been exactly the balance
due if the partial payment of £66 on the J&130 bill was to be
credited, not to Andrew the drawer, but to the acceptors, which
the defender contended was necessarily the case, from the pre-
sumption of law that all payments, where there is no special re-
ceipt, must be held to have been made by the debtor in the bill.
He afterwards, however, denied all liability, and the Sheriff hav-
ing assoilzied him, Andrew Soutar brought an advocation, and
he also raised a supplementary summons, (carried on by his re-
presentatives after his death,) founded not only on the two bills
of jPIOO and £180 retired by him, but on the original bill of
JBSOOy and relative letter of relief.
In these conjoined actions it was alleged by the defender, That
there was no proof of the pursuer's averments as to the history
of the transactions ; and in regard to the documents founded on,
he pleaded,
1. That the whole three bills were extinguished by the sexen-
nial prescription.
2. That the partial payment of £65 on the £180 bill must be
held to have been made by the acceptors, the debtors in the bill,
and not by Andrew, who was' the drawer, the more especially as
in the chaige given by Andrew to Thomas deduction was allowed
of this sum ; and,
S. That the bill for £100 was manifestly vitiated in the date.
To this it was answered,
1. That in so far as the action was founded on the letter of re-
lief, neither the sexennial prescription nor the special objections
to the two bills could have any effect, and that on the letter alone
there were sufficient grounds for a decerniture against the de-
fender ; but besides, that the plea of prescription was barred by
the partial payments, one of them subsequent to the lapse of six
years, by the agent's letter admitting a balanoe to be due, though
disputing the amount, and by diligence having beefn done on the
«£300 and <£130 bills, a charge having been given on the one
to Andrew Soutar, and on the other to Thomas Soutar, and a
878 CASES DECIDED IN THE
claim having been made on the £100, bill on Thomas's bankrupt
estate*
8. That the receipt in fall to Andrew on paying up the bill
redargued the presumption of law as to the prior partial payment,
proving it to have been made by Andrew, and that the circum-
stance of deduction of the partial payment being allowed in the
charge arose from this, that it proceeded on the protest taken bj
the holder after the partial payment had been made ; and,
8. That the vitiation was made at the time to correct an error;
but of this there was no proof, except an inference to be drawn
from the appearance of the bill.
The Lord Ordinary decerned against the defender, and the
Court adhered.
W. Walkeb, W- S G. Heggie, W. S— Agents.
No. 423. J. Fahie and Others, Suspenders and Pursuers.— Jordhe.
Executors of the late John Muib, Chargers and Defenders.—
Cockburn.
Road Act$* — An original subscriber to a road not entitled to attach the iento d
toll-bars while there was no surplus, alter applying them to the. purposes pro-
vided by the acts of Parliament, and the payment of the interest of money bor-
rowed on the security of the tolls.
»
June 29. 1827* This was a question as to whether, under certain local roadacfc,
3d Dmuoir. ^e rent °* *e Shawfield toll-bar, near Glasgow, situated on what
Ld. Mackenzie, had been originally the Cambuslang road from the city of Glasgow,
F- ^ could be attached for payment of the debt due to an original sub-
scriber to the Muirkirk road, declared by the first act of Parlia-
ment to be a * lien and preferable claim' upon the tolls* These
two roads had been put under the same trust some years after
their formation, but with special provisions as to the application
of the proceeds of the Shawfield bar— a certain surplus only going
to the Muirkirk road ; and a large debt had been contracted
under the acts of Parliament on assignations to the tolls, the
payment of the interest of which left no funds, after keeping
the roads in repair. The Sheriff of Lanarkshire, in a fori*"
coming by the representatives of John Mtrir, an original sob-
scriber to the Muirkirk road, had decerned agaifist Fane 4c
the toad trustees, and had also previously decerned agasrt them
qua trustees in an action of constitution of the debt* But they
having brought a reduction of the decree of eonstittrtiesv*** a
suspension of that in the forthcoming* on the ground that thqr
had no available funds, aa the surptas applicable to the M&*
COURT OF SESSION. 879
•
road, after the proceeds of the Shawfieid bar had been applied in
terms of the statute^ was not nearly sufficient to pay the interest
df the money borrowed on assignations to the tolls,— *the Lord
Ordinary suspended the letters in the suspension) and decerned
in the reduction.
The Court adhered in the suspension, but recalled as to the re-
duction, and remitted to hear further as to whether the trusteed
were entitled to have a reduction of the decree, in respect to their
character of trustees on the Cambuskng road, as distinct from
that of trustees on the Mubkirk road, on which the debt was-
drigiiiaUy contracted.
J. Bridges, W. S. Agent.
J. ANDfeiisoN, iParsuer.— /Wferfcrn— -G. Bett. ' jfo. 424.
W. Bohthwick add Others, Defenders.— D. qfF. Moncreffi*- *
Fvreignert—Bmeeutor* Cautioner.— Circumstance* under which it wu held, that/
cautioners for executors confirmed in a Scottish Court, but who resided in En-
gland, could not be called on to count and reckon in terms of their bond, till a
decree was obtaiued against the executors.
The late James Anderion, who was a native of England, but, June 30. I827.
had resided in Inverness-shire for several years prior to his death,, i8T Division.
executed a will by which he nominated John Arkle and William Lord Eldin.
Armourer, both native and resident Englishmen, his executors, H*
and bequeathed several legacies in favour of parties who resided
in England, among whom was the pursuer Anderson. The exe-
cutors obtained themselves confirmed before the Commissary of
Inverness, and at the same time George Borthwick, merchant
in Jedburgh, and Samuel Wood, writer there, granted a bond,
whereby they bound and obliged themselves, ' conjunctly and
' severally, our heirs and successors, as cautioners and sureties,
' acted in the Commissary Court Books of Inverness, for John,
< Arkle of Bilsmorefoot, and William Armourer of Duns, both
' in the county of Northumberland, England, tnat the sum of
' £200 sterling, contained in the testament dative of umquhile
' James Anderson of Garthmorg in the shire of Inverness, where-
* in the said John Arkle and William Armourer are only execu-
' tors dative decerned and to be confirmed to the said defunct. '
c shall be made free and forthcoming to all parties having interest
* therein, as law will; and subject ourselves, and our heirs and
* successors, to the jurisdiction of the Commissaries of Inverness
' in this particular, and appoint their clerk's office as a domicile
880 CASES DECIDED IN THE
* whereat we may be cited 'to all diets of Court,* &c- ^o domi-
cile, however, was appointed within Scotland for the executors.
Thereafter, George Borthwick being dead, and represented
by William, the pursuer Anderson came to Scotland, and raised
an action of count and reckoning jn the Court of Session, both
against the executors, and the defenders as their cautioners.
He, however, did not found any jurisdiction against the exe-
cutors, but cited them edictally as defenders in the action. In
his summons he concluded that these parties * should be deeern-
* ed and ordained, by decree of our Lords of Council and Ses-
* sion, to exhibit and produce before our said Lords a full and
' particular state of accounts of the said executors* intromissions
* with the funds and effects of the said deceased James An-
* derson, whereby the true balance due by them to the pursuer
c may be duly ascertained, by our said Lords f and * the said
' John Arkle and William Arm&urer, as executors aforesaid ; and
€ Samuel Wood, and William Borthwick as heir foresaid of the
' said George Borthwick, to the extent of the sum of JMM ster-
4 ling, contained in the said bond of caution, Stc, but subsidiary al-
' ways, ought and should be decerned and ordained, by decree fore-
' said, to make payment to the pursuer of the sum of £GO0 ster-
* ling, or of such other sum as shall appear to be due by the said
* executors to the pursuer, as the balance of their said intromis-
' sions, after deducting the whole of their legal grounds of dis-
« charge/
No appearance was made by the executors; but Borthwick and
Wood, the cautioners, appeared and pleaded, That before they
cbuld be called on to implement the bond, it was necessary that
a decree of constitution should be obtained against the executors;
that as these executors were not subject to the. jurisdiction of the
Courts of Scotland, no decree of constitution could in this action
be pronounced against them ; and that such being the case, and
the cautioners being concluded against only to make forthcoming
subsidiarie of what should be found due to the executors, the ac-
tion was incompetent against them.
To this it was answered,
1. That as the executors had obtained themselves confirmed
before a Scottish Court, they had thereby constituted a jurisdiction
against themselves, in so far as related to their intromissions and
conduct in that character ; and therefore it was quite competent
to pronounce decree against them in this action ; and,
$. That as it had been settled by repeated decisions that where
a principal is abroad, it is not necessary to discuss him before
proceeding against the cautioners, and as a decree of constitution
COUBT OF SESSION. 881
was merely one of the steps of discussion, the pursuer was entitled
to raise his action forthwith against the cautioners.
The Lord Ordinary sustained the defences, and the Court,
after taking time to consider, adhered, ' in respect that the pur-
' suer has obtained no judgment against the executors showing
* that he has an interest or preferable claim to the sum of «£800*
c contained in the cautionary obligation in question.1
At the first advising, Lord Balgray observed : The great error which
has been committed, has been the omission to cause the executors
to constitute a domicile in this country. No doubt they are bound
to account; but they are foreigners, and how are we to proceed
against them ? It is plain that we have no jurisdiction over them,
and therefore we cannot pronounce decree against them. But if so,
then, as the cautioners are entitled, before being called on to make
payment, to see a decree against the executors, to which they may
get an assignation in relief, and as no such decree has been or can
be pronounced by this Court, the action is plainly inept.
Lord Gillies.- — There is considerable nicety in this case. An exe-
cutor is an officer of Court appointed to execute the will of the de-
ceased, and therefore I doubt whether a jurisdiction is not thereby
constituted against him. Put the case of a Scotchman being ap-
pointed an administrator in England; would he not be liable to the
jurisdiction of the Courts of that country ? I apprehend that he
• would* If, therefore, our decision is to be considered as proceeding on
the general ground, I am not prepared to concur in it* But in the
particular circumstances of this case, and attending to the nature of
the bond, and to the conclusions of the summons, I think that no
proceedings can be taken against the cautioners until decree 'has
been pronounced against the 'executors. The obligation of the cau-
tioners is merely to make forthcoming a specific sum, whereas the
conclusion is for an accounting, which can plainly be only done by
having the executors .astparties to the action ; and besides, what title
has the pursuer to require implement of the bond, till he establish
that there is the sum due which is there mentioned ?
After their Lordships had taken time to consider, the Lord Pre-
sident stated, that in this particular case the Court had soon come
to be of one opinion*
Pvrtuer's Authorities. —Don), Jan. 20. 1693* (9073 and 8077); Montgomery,
June 18; 1713, (3586) ; 1. Bank. 3d. 80 ; Fisher, Dec. 17*7, (3110) ; Drummond,
Jan. 14. 1833, (ante,, Vol. II. No. $85.)
Low and Rutherford, W. S. — D. Watson, — Agents.
8tt CA8B8 DECIDED IN THE
No. 425. B. Nicol.~D. ofF. Moncrciff—More.
A, CHBXSTt£.~-Jatp&oft.
v
Competing.
SapU9traiioi^A0idci*L~H*\& that * creditor claiming on the estate of a putter
of a company for a debt due by the company, must value hi* claim against the
other partners, and deduct it, otherwise he U not entitled to vote.
June 30. 1827- The estate of George Batchelor, one of the partners of the
1st Division. Pompany of Francis and George Batchelor, having been seques-
Lord Newton, t rated, a competition arose between Nicol and Christie for the
D- office of trustee. The fate of the election depended upon the
votes of Robert Nicol and George Whitton. Both of these par-
ties claimed upon bills granted by the company of Frauds and
George Batchelor, and in their affidavits they valued their
claim against the company at nothing ; but they did not put any
value upon the claim which they bad against the other partner,
Francis Batchelor. It was therefore objected by Christie, That
as the company was the primary debtor, and the bankrupt merely
a collateral bbbgant, and as the other partner Francis stood also
in that situation, the claimants were bound to have put a value
upota their claim against Francis, and to have deducted -it in
terms of the 24th section of the statute.
To this it was answered, That as the partners were as much*
primary obligants in relation to a creditor as the company was, it
was not necessary to value the claim against Francis, and accord-
ingly in practice this had never been required, and could scarcely
ever be done,, seeing that it was often impossible to ascertain how
many partners there were, and what were their respective interests
in the company.
. The Lord Ordinary sustained the objection, and preferred
Chriatie ; and the Court adhered.
Lord Qillibs.— On the. statute I think the interlocutor is right. It
is only in the case where the ranking is on the estate of the primacy
obligant, and who is hound to relieve the other obliganfs, that it is
not necessary to value the claim against the collateral obligants ; but
here the company is the primary obHgaftt, wA Geacge and Fraaba
stand in the situation of collateral obMgsms, and entitled to vslis/aat
of the funds of the company for proper company debts. It m dear,
therefore, that in ranking .on the estate of George, the daim en that
of Francis ought to have been valued.
Loan President. — Suppose that the estate of Francis wen able to
pay five shillings in the pound,, would the creditor not be bound to
value and deduct ? I apprehend that he would.
COURT 0<F SESSION. 888
Loan Balgray concurred.
Load Craioik said nothing, but was understood to assent.
Campbell and Mack, W. S — J. Brown, W. S. — Agents. %
H. Rose, Pursuer. — Jeffrey — Jameson. No. 426.
Mrs. Isabella ATLeay and D. Horne, W. S. Defenders. —
Sol.-Gen. Hope — Menzies.
Process— Previous Expenses.— Circumstances in which an amendment of a libel
was admitted, without subjecting the party in any previous expenses.
Rose having brought an action of transference of a process June 30. 1827.
depending with the late Kenneth STLeay against Mrs. M'Leay, jD divisiow
his widow, and Donald Home, writer to the signet, as ' trustees Lord Medwyn.
4 and executors appointed by the said Kenneth M'Leay, conform B.
' to trust-disposition/ &c, they put in a defence in these terms :
c The defenders do not represent the deceased Kenneth M'Leay
( on any of the titles known in law. The defenders have not
' made up any title to the heritable estate of the deceased under
* the trust-disposition and settlement libelled on. The defenders
c have not been confirmed executors under the trust-disposition
' libelled on/ To obviate this defence, Rose offered an amend-
ment of the libel, to the effect of designing the defenders as ' ac-
' cepting and acting trustees and executors of the said deceased
,' Kenneth M'Leay, and as such intromitting with and in the
.' management of his estate, and thereby representing him a* trua-
' tees and executors foresaid.' This amendment having been ad-
mitted by the Lord Ordinary, without subjecting Rose to any
previous expenses, the defenders reclaimed, and contended that
it was imperative on the Lord Ordinary to award previous exr
penses before admitting an amendment of the libel ; but the Court
unanimously refused their reclaiming note.
The Lord Ordinary observed in a note : — The Lord Ordinary for-
merly explained why he thought himself entitled to admit of this
amendment without calling upon the pursuer to pay any part of the
previous expenses. The action is sought to be transferred against
certain persons nominated trustees by a trust-deed specially referred .
to according to its date and the date of its recording. The defenders
do not say they are not trustees ; they do not allege they have not
accepted the trust, but content themselves with saying they have not
made up titles either to A© heritable or moveable property, and do
not represent the deceased on any of the titles -known in law. ' Hie
Lord Ordinary thinks they were bound, when calfed as trustees, to
go further, and say whether they had accepted and acted as trustees \
884 CASES DECIDED IN THE
and therefore that the amendment which was proposed by the pvr-
> suer, in order to obtain an explicit answer on this point, was ren-
dered necessary, not so much by any defect or omission in framing
the summons, as in an over nice and critical adherence, on the part
of the defenders, to what they conceived was ail they were called
upon to attend to in their defences*
Lord Justicb-Clerk. — It is only where the Lord Ordinary thinks
the summons so defective as to induce him to order an amendment,
that he is obliged to give expenses.
The other Judges concurred.
D. Clbohorn, W. S*— J. Gordon, W. S. — Agents.
No. 427. Sir Neil Mekzies and Others, Suspenders. — Sol-Gen. Hope —
Buchanan.
A. Duff and Others, Respondents. — Skene — J
Road Act*— Aifefrftcf .-^Interdict granted against road tiustees quarrying stones,
pending s discussion as to their right to do so under certain local statutes of
which they had the benefit, notwithstanding the provisions of the general road
act ; and Observed as to that statute, that' its effect is to ride over all turnpike
statutes which are to be read as if it were engrossed in them.
June 30. 1837. The respondents, trustees of the Edinburgh middle district of
2d DiTisioir Toad*, having commenced to quarry stones in grounds forming
Bill-Chamber, part of the property of the late Baron Norton, Sir Neil Menmes
Lord Newton, and others, his trustees, presented a bill of interdict, on the ground
F> that the place where the stones were attempted to he quarried feH
within the exemptions of the general road act, (4. Geo. IV. c 40,)
and that the provisions of that statute as to intimation, he. had
not been complied with. In answer to this it was pleaded, That un-
der the local turnpike statutes for the county of Edinburgh, (the
powers in which had been extended by statute to the roads of
the middle district,) the trustees were clearly entitled to quarry
stones from the grounds in dispute, and that they had complied
'with the provisions of these statutes as to intimation, 8tc ; and
they maintained, that though the powers contained in the local
• statutes had been extended to the roads of the middle district,
still these roads were not turnpike, and could not therefore be
affected by the provisions of the general road act* which was
limited in express terms to turnpike roads, although these local
acts, in so far as their own proper turnpike roads were concern-
ed, might be modified by the general act; and besides, that this
act did not supersede more extensive powers contained in pterious
acts, and would not, even although it were to apply to the noddle
: COURT OF SESSION. 885
district roads, prevent the trustees taking materials from the
place in question/ •
The cause having been remitted to be discussed on the bill, the
Lord Ordinary remitted it ob contingentiam to a declarator pend-
ing before another Lord Ordinary, and concluding to have it de-
clared that the trustees had no right to quarry in the ground in
question ; and his Lordship at the same time recalled an interdict
which had been previously granted. Against this interlocutor,
so far as it recalled the interdict, Sir Neil Menzies &c. gave in a
reclaiming note, on advising which, the Court unanimously alter-
ed, and continued the interdict.
Hie Court, without determining the merits of the question, were satis-
fied that, as the interdict was in fact the whole question at issue, the
right of the trustees to quarry' stones under the older turnpike sta-
tutes, unfettered by the provisions of the general road act, was at all
events not so clear as to warrant their being allowed to work pend-
ing the discussion ; and in reference, to the effect of the general road
act it was observed, that it must be considered to ride over .every
turnpike act, and that every such act must be read as if the general
act were engrossed in it.
A. Pearson, W. S H. Watson, W. S*— Agents.
J. Guild, Suspender. — N eaves. No. 428.
W. Lsitch, Charger.— Clephane.
Process— Expenses.— -Guild presented a bill of suspension of June 30. 1837.
a charge for payment of the dues of extracting a decree for ex-k 2d Dmsioif.
penses in an Inferior Court, and offered to instruct, by the oath b ill-Chamber.
of the charger, (the law agent who had conducted the process, Lord Newton.
<and in whose name decree had gone out,) that the parties had
agreed to pay the expenses without extracting whenever they
were audited; and. that the charger had extracted without pre-,
vious intimation, and without having the account audited, within
fi ve days of the date of the decree, in which, in the Inferior Courts,
a blank is always left for filling in the expenses when audited.
The Lord Ordinary and the Court refused the bill, chiefly on the
ground that the suspender should have objected to the extract
going out in the Inferior Court within the time allowed for that
purpose.
k
»
J. Gentle, W. S. — J. Pedis, W. S« — Agents. *
vol. v. S L
886 CASES DECIDED IN THE
No. 429- ^■TS' ^NN Henderson or Mercer, Raiser.— jSo»4/o«*-
Admiralty Clerks, Compeared. — Sob-Gen* Hope—Ntave*.
JurirticH<m—Procet*—MulHplepoindingj—VwX of the cargo of a vessel baring
been sold by warrant of the Judge Admiral, pending the discussion of a process
for condemnation as a prize, and the proceeds lodged in a bank on a promissory
noteifcposited with the Clerk of Court ; and the Judge Admiral havmgfosnd that
the cargo was not liable to condemnation, and that it must be restored to a cer-
tain -foreign house or their attornies ; but no claim having been made for many
years, and a summons of multiplepoinding having been raised in the Court of
Session in name of the bankers, by a party pretending right to die fund, in which
there was a conclusion that the Admiralty Clerks should be ordained to pre*
duce the promissory note, but which summons was not executed against them —
Held,— 1.— That it ought to have been so executed. — 2.— That U was an in-
competent process in the Court of Session j— -and, — 3.— That the Admiralty Ckrki
were entitled to object to the competency.
June 30. 1827. ^N the year 1799 proceedings were instituted in the Court of
— — Admiralty by a naval officer commanding one of bis Majesty 's
Lord Medwyn. cutters, for having a vessel called the Stettin, which bad been cap-
F, tured by him, adjudged, with the cargo, to be a legal prize. The
cargo was claimed as shipped by neutral merchants of Hamburgh,
and the greater part of it was allowed to be delivered up to the
merchants to whom it had been consigned in this country, on their
finding caution to repeat should it be condemned. A quantity of
hides, however, not having been claimed by any consignees in this
country, a petition was presented to the Judge Admiral in name
of A. Henderson and Sons, merchants in Leith, agents for the ship
and owners, praying for warrant to sell the hides, in respect of
the perishable nature of the commodity, the price to be deposited
in a bank for behoof of all concerned, till the determination of the
process of condemnation. Warrant having been granted in these
terms, the hides were accordingly sold, and the price, deduct-
ing freight and charges, paid in to the bank of Sir William For-
bes and Company on a receipt, which was deposited in the hands
of the Clerk of the Admiralty Court, and was in these terms : —
' On demand we promise to pay to the order of Messrs. A. Hen-
' derson and Sons, being free proceeds of hides sold under war-
< rant of the High Court of Admiralty, Scotland, £221 : 1 : 4
' sterling, value received.9 The Court of Admiralty ultimate-
ly found that the cargo was not liable to condemnation, and
that the price belonged to the Hamburgh merchants, and was
upliftable by them or their lawful attornies, and the judgment
was affirmed in the Court of Session.* No claim, however, hav-
• See Q'Neil, Nov- 19. 1806, (Ap. Prize, 2.)
COURT OF SESSION. aS7
ing been made for the proceeds of the hides, am advertisement
was, by order of the Judge Admiral, inserted in the newspapers
in 18S6» intimating that the promissory note above mentioned*
was still lying in the Clerk's hands, in order that parties having,
right thereto might bring forward their claims. In consequence
of this, Mrs. Mercer, the daughter of the late Mr. Henderson,
partner of Henderson and Sons, instead of making a claim in the
Court of Admiralty, raised a summons of multiplepoinding in
the Court of Session in name of Sir William Forbes and Com-
pany, in which there was a conclusion that the Clerk of the Ad-
miralty should be ordained to produce the receipt, that the right
thereto might be determined. The summons was not executed
against the Adnyralty Clerk, but on an order being pronounced
and intimated, ordaining him to produce the receipt, appearance
was made by the Principal and Depute Clerk, who, after having
been reponed against this order, gave in objections to the multi-
plepoinding on the grounds,
1. That the summons had not been served on them, though con-
tuning conclusions against them.
8. That Mrs. Mercer had no title to raise the action, seeing
that Henderson and Sons, in whose right she claimed, had acted
merely as agents for the owners, and did not pretend any right
to the hides, the proceeds of which formed the alleged fqnd in
medio; and,
S. That it was incompetent to bring a multiplepoinding in the
Court of Session as to a fund in manibus of another Civil Court,
more especially when the right to that fund necessarily depended
on maritime questions not competent to the Court of Session in
the first instance.
Besides attempting to combat these pleas, Mrs. Mercer con-
tended, That the only interest which the Clerks could have was to
be exonered, and as that could be done equally in the Court of
Session as in the Admiralty Court, they were not entitled to ob-
ject to the competency of the process.
The Lord Ordinary stated as his opinion, ' That an application
< to the Admiralty Cpurt would have been the more reguJar form
* of disposing of the question to whom the contents of the pro-
* missory note belonged, if the circumstances of the case had been
« either known to the parties, or if information could have been
' got from the Admiralty Clerks ; yet as, at the distance of 27
* years, and owing to the death of the parties who knew the cir-
* cumstances under which the deposit had been made, no distinct
* information could be got, it does not appear to have been an in-
' competent or inexpedient proceeding to raise a process of mul-
8t8
888 CASES DECIDED IN THE
c tiplepoinding in this Court in the name of the holders of the
< fund,' and repelled the objections to its competency ; but on a
reclaiming note by the Admiralty Clerks, the Court unanimously
altered, and dismissed the process.
Lord Alloway*— -This Court can hare no jurisdiction in the first
instance in a matter purely maritime,, which this is. The consign-
ment here, notwithstanding the form of the note, is truly in the hands
of the Admiralty Court, and we cannot take away the fund from that
Court, and decide who has right to it. If we entertained such an ac-
tion as this, the Magistrates of Edinburgh, or any other Court in the
kingdom, might do the same thing.
Lord Glenlee. — There are no termini habiles for any competition.
In a formal decree of the Court of Admiralty, it has been found that
a foreign house is entitled to this money, and it cannot be paid out
to the representatives of that house, And execution of the decree can
only be asked from the Court of Admiralty itself. Even holding it
to be merely a mercantile question, there is an error in form, as
the summons was not executed against the Clerks. It is plain the
interlocutor must be altered, and the process dismissed.
Lord Justice-Clerk. — It is clear that we cannot interfere, and that
the matter belongs to the Court of Admiralty, and must be settled
there. In the case of money consigned in the hands of the Jus-
ticiary Court, the right to it must no doubt be determined by a
Civil Court ; and in such a case, a multiplepoinding might be brought
here, but it cannot be done where the money i& in the hands of an-
other Civil Court, and this woman has no title whatever.
A. Duncan, S. S. C. — J. Burness, S. S. C — Agents.
No. 430. Colonel Cameron, Pursuer. — Forsyth — Skene.
Campbell's Trustees, Defenders. — D. qfF. Moncreif—
Jameson.
July 3. 1887. This was a case of a special nature. The Lord Ordinary as*
Jbt DmaioK. 80^z^ *e defenders in hoc statu, and the Court adhered.
Lord Eldin. T Baillie,— Hunter, Campbell, and Cathcart, W. S— Agents.
.*«
COURT OF 9ESSION.
J. Mopfat, Pursuer. — Sol-Gen. H&pe—M'Netil. , No. 431.
J. Alston and Others* Defenders.—*/), of F. Moncreiff—
Jameson — Pypcr.
Special case. The Lord Ordinary assoilzied, and the Court July 3. 1897.
adhered, under a qualification. 2d Division.
Tod and Wright, W. S. — James Lang, W. S. — Campbell and m»K-
Macdowall, — Agents.
G. Pentland, Petitioner. — D. qfF. Moncreif— Buchanan. (No. 43SL
D. Patebson, his Trustee, Respondent. — Sol.-Gen. Hope —
Fullerton — Paterson. .
JSefltestraHen.— The creditors of a bankrupt under sequestration baring resolved
that his estate should be exposed to sale ; and this having become final, and the
trustee having advertised a sale, and the bankrupt having presented a petition
praying to prohibit it— Held,— 1.— That it was competent to order the petition
to be answered, although the sale was thereby suspended ; but*— 2.— That on the
merits it ought to be refuted.
Paterson, trustee on the sequestrated estate of Pentland, coach-
maker in Perth, having, pursuant to a resolution of the creditors,
advertised for sale by public roup the coach- work and the rest of
the heritable property belonging to the bankrupt, on the 18th of
June, which was not complained of, the bankrupt on the 14th
presented a petition to the Court of Session, stating that his debts
were only £6149; — that the debts due to him amounted to
£88,000, and his available property to £81,000 ;— that he had
only the night before seen the upset prices proposed by the
trustee, which were greatly beneath the true value ; — that several
of his friends had offered to advance him money on security of
his property, sufficient to pay his debts in full ; — and that he was
willing immediately to find caution to that effect, and praying
that, in these circumstances, the trustee might be prohibited
from proceeding with the sale, as being ruinous to the bank-
rupt, without producing any material benefit to the creditors.
This petition was opposed at the Bar by the trustee, who con-
tended, That it was incompetent for the Court to stop a sale
directed by a resolution of creditors, which had not been com-
plained of in the ordinary form ; but the Court, by a majority,
ordered it to be seen, and allowed eight days for giving in answers,
thereby necessarily suspending the sale.
Answers were accordingly given in by the trustee, in which
he stated, that, from the date of the sequestration in July 1826,
July 3. 1827.
— ■"
2d Division.
M'K.
890 CASES DECIDED IN THE
frequent delays had been granted to the bankrupt in the dis-
posal of the estate, to enable him to bring forward aa offer of
settlement ;— that the resolution authorizing the sale was quali-
fied by a condition that it should be suspended if the bankrupt
made an offer of security within six weeks;— that the debts in
all amounted to upwards of £12,000;— that the £88,000 of dAte
said to be owing to the bankrupt consisted of claims either utterly
hopeless from the situation of the debtors* oriauphlcofbeing
rendered presently amiable, <* such as* from their character,
could not be recovered in a Court of Law ; — that the bankrupt's
estimation of his property was greatly too high ;— that nooeof
it could at present be rendered •effectual except that advertised
for sale;— and that the upset prices had been fixed on fair cal-
culations made by respectable and skilful persons. In these
circumstances, and the bankrupt not being prepared with aoj
security for payment of the debts, though offering to do » if
the sale were delayed, the Court unanimously refused the peti-
tion.
Lord Justice-Clerk, — What the Court would have done if a re-
gular bond of caution had been offered, I need not say, as that is
not the case before us. I do not regret the delay occasioned by
ordering answers, as it was necessary to ascertain how the facts
stood. But, as matters presently stand, I can see no pound for
interfering with a sale, in pursuance of a resolution of oediton
not complained of.
Lord Glenlee. — The assertions in the petition were so stroag,that
I expected an offer of caution would have been tendered to the
trustee before the petition came out for advising. Bat this his
not been done, and I therefore think that it is not within the pw«
of the Court to interfere on such loose allegations as are nor aade-
But if he still offers caution before the sale, the trtstee wiO pay
that attention to it which the lesolntisei of creditore hnpBesheb
to do.
Lord Pitmilly concurred.
Lord Alloway.— -I conceive the Court have no power to hiserftft
fa a matter of this description, unless something lagraat sad flfcp1
be pointed out.
A. C. Howden, W. S.— H Roy, W. 8.— Agenta.
COURT OF SESSION. 891
C. Russell, Pursuer.—/). <fF. Moncreif—Keay. No. 433.
Eabl of Brea dal bane, Defender.— Jardine.
A$tignati9* Pg^wM^^CIreiMMtooow voder which it was held that an aMig-
nation of the share of a lease, forming part of the stock of a partnership, by one
partner to another, does not require formal intimation to complete it, in order to
make it effectual against the creditors of the cedent
Tbe judgment of the Court in this case mentioned ante, July 3.1827.
Vol. II. No. 62, (which see,) having been appealed to the House 2d £^^mt
of Lords, that House ordered the cause to be remitted to the Remitted from
Court of Session, ' to review generally the interlocutors complained H- of L*
* of in the said appeal,9 with directions * especially to consider how MK#
* and to whom intimation of the assignation ought to have been
* given/ and to require the opinion of the other Judges. When
the judgment came to be applied, Cases were ordered for the
whole Court, and in these, besides argping the general question
regarding the completion of the assignation of the lease, the da-
fender founded in a great measure on the specialty of his being a
partner of the concern, of which the lease in question formed part
of the stock', so that the transference was that of a share of the
partnership by one partner to another, and not properly the as*
signation of a lease. The consulted Judges, considering that this .
superseded the pecessity of determining the question specially
pointed out in the judgment of the House of Lords, returned the
following unanimous opinion, which sufficiently states the circuofe-
stances of the case :— * In consequence of the investigations which
* have taken place, and the productions which have been made in
* this case, since it returned from the House of Lords, we think
* that the question as to the mode of completing an assignor
' tion of a lease does not arise in it. For it appears that tne
' predecessors of the parties in this case, along with other persons,
' entered into a copartnery, (13th March 1745,) under the name
4 of ' The Marble and Slate Company of Nether Lorn/
< On the 23d May 1748, Lord Glenorchy granted two leases
' of certain subjects to the partners nominatim, ' who, by con*
" tract bearing date ISth March 1745, have all entered into co*
" partnery, under the name and title of the Marble and Slate
" Company of Nether Lorn/ Two of these partners, Colin
' Campbell of Car whin, and John Campbell, cashier of the Royal
' Bank, having acquired the shares of the other members of the
( company, thus became the only partners ; and it appears that
* the two leases, which would expire in 1801, were, by a deed
* dated 6th March 1771, prorogated by the landlord to them
80S CASES DECIDED IN THE
* equally, their heirs and assignees, for the space of two nineteen
c years. By an agreement, dated 28d March 1771, on the nar-
« rative of die prorogation of the two tacks, and evidently as a
« part of the same transaction, the two parties, Carwhin and John
* Campbell, prorogated and prolonged the contract of copartnery
« for the like term of two nineteen years, * to quadrate and agree
" with the said prorogation." Lord Breadalbane, the son of
c Carwbin, and Mr. John Campbell, the son of the other partner,
< were, in 1818, the only partners of the company possessing
1 under the prorogated tacks, and the interest of each partner in
' it was merely the share of the profits he was entitled to draw as
' a partner.
* On the 2Sd June 1813, Mr. Campbell accordingly granted
( an assignation of his ' interest or share in the stock and effects
« of the Marble and Slate Company of Nether Lorn/ in favour
' of Lord Breadalbane, assigning hi$ interest or share from and
€ after Martinmas 1812, in security of certain sums advanced to
« Mr. Campbell. Lord Breadalbane did not immediately act on
* this assignation. But he states that, on 2d June 1818, he gave
' notice, by a letter of that date, to Mr. Campbell's son, that he
( was now to avail himself of the assignation ; and he desired the
4 money received in payment of the bills drawn for sales at the
* quarry to be paid into the Royal Bank in his name for the
* quarry, instead of being received by Mr. Campbell as formerly.
* Mr. Campbell junior acknowledged the receipt of this letter on
c the 6th of June.
* Lord Breadalbane's letter is not produced ; and the creditors
*" do not admit that the above was the import of it, though there
* seems to be strong presumptive evidence of it, both from the
* terms of the answer of the 6th of June, and because immediately
c afterwards Mr. Campbell did give notifce to the manager at the
' quarry that the mode of drawing the bills was to be changed ;
* and a new account was also immediately opened with the Royal
' Bank, in the name of the Earl of Breadalbane, for the Easdale
« Slate Company ; so that, either by the letter of the Sd June,
' or by some other communication, verbal or written, it is plain
* that notice was given to the above effect, and that a correspond-
* ing change of possession took place, which gave full effect to
* the assignation 1818. Therefore we hold this to be all that
* was necessary to secure to one of the partners the share of the
* stock belonging to the other partner, which he had previously
4 assigned to him ; being of opinion that the legal form of inthna-
* tion is not necessary to complete an assignation, whereby one of
' two partners assigns his sharp, in the company-stock to the other.
COURT OF SESSION. 898
* The notice here given was necessary only because the assigna-
* tion had not been operated upon at first, which made it neces-
c sary to intimate that the right under it was for the future to
' be made available ; and for this purpose such notice was suffi-
* cient.
* But in this case, the transfer is still further unchallengeable,
* as the notice was followed up by Lord Breadalbane obtaining
' possession of all bills after that period made payable to the
* company, as well as the proceeds of such as were then in the
' circle, as is established by the letter and memorandum of 29th
' June 1818. The notice of 2d June 1818, and the possession
* following upon it, were prior to the sixty days preceding Mr.
c Campbell's bankruptcy, which took place only on 21st August
* 1818; and therefore we consider Lord Breadalbane^ right to
* Mr. Campbell's interest or share of the stock of the company,
' subsequent to the above notice, unchallengeable at the instance
' of the other creditors who have no title, either by diligence or
c otherwise, to compete with this assignation/
The Court accordingly, in conformity with this opinion, re-
pelled the reasons of reduction, and assoilzied ; refusing at the
same time a motion made by the defender for a diligence to re-
cover the letter said to have been written by Lord Breadalbane,
and founded on in the above opinion.
Lord Justics-Clerk. — Judgment must of coarse be pronounced in
conformity to the opinion of the consulted Judges ; but I am not
prepared to assent to all the propositions contained in that opinion.
I have the greatest repugnance to the transference of the share of
a partner kept concealed from the world, the partner being allowed
to go on with the management. Suppose the company had been
involved in ruin, could this man have been relieved of his liability
by what has taken place ? In such a case, the Court would be
obliged to determine whether something more was not necessary to
transfer than a simple assignation. Then as to the supposed
change of possession, it rests on a very narrow basis. It may
have been a very convenient arrangement, but I can see no change
of possession, or such a transference, as in my opinion the law re-
quires.
Lord Glenlee.— I acquiesce so far in the opinion as to think that
there are here no termini habiles for determining the question,
whether intimation is necessary to complete an assignation to a
lease. There are two reasons for intimation in transference of
this description,— one to put the party in mal& fide, which does
not occur here, and the other to the manager, which is an act of
possession of the right, and the only one which in many circum-
8W CASES DECIDED IN THE
stances can be had. Now, I cannot -conceive a right tfcat does
not require either actual possession or intimation ; and the qoestm
here is, Whether there was such actual possession as to vest the
right ? There was no doubt a possession, but I have a difficulty
in ascribing it to the right. If I bring a quantity of grain into a
cellar, and intimate to the keeper of the cellar that he is to hold
it for me, that puts him in mali fide to give it to another, and it
is an act of possession. But if he sends me some bolls of it, that
is no act of possession, and does not complete the transference.
In the same way here, though the bills going into Lord Bceadal-
bane's possession were transferred, that did not necessarily trans-
fer the right. On the whole, I have a certain degree of difficulty
in concurring with the opinion.
Lord Pitmilly. — If this case comes to be quoted as a precedent, I
can hold it to decide nothing but what is stated in the first sen-
tience of the opinion ; and I still think that in a question with
creditors, a transference of a lease, retenta possessions, is not
good.
Lord Alloway. — I concur with the consulted Judges. There is
no person to whom the assignation oould have been intimated ;
there were only two proprietors, and there is no instance of an in-
timation to servants in order to transfer property.
V. Hathorn, W. Sw — H. Davidsom, W. Sk — Agents*
No. 434. Magistrates of Kibkaldy, Petitioners.— Lummien.
Ptfm*.— Held incompetent to remit to the Lord Ordinary en the
cation to declare a prison in the course of erecting kf*l*
July 5. 1837. The Magistrates of Kirkaldy presented a petition, stating that
lsTDivpioir. *key were in the course of erecting a new jail, which would he
D. complete and ready to receive prisoners within a month — that the
old jail had been pulled down — and that it was of great import-
ance that they should be allowed to have the use of the new one
so soon as it was ready ; but, as the Court would not be sitting,
they prayed for a remit to the Lord Ordinary on the Bills to re-
mit to proper persons to examine and report during vacation, and
thereafter to declare it a legal prison. The Court, however, con-
sidering that they had no power to make such a remit, refused it ;
but remitted to the Sheriff to examine and report by the first
sederunt day in the winter session. ^
J. Stuart, S. S. C. Agent.
COURT Of SESSION. 985
W. Kilpatrick, Petitioner.— Pyper. No. 435.
D. Wighton. — Jamewit—Reddie.
M'Kbusib, Respondent—^. BTNeiU.
HtwmAfupl** StpuntftUioB.—An offer of composition refused as not reasonable.
Question raised, whether the claim of a creditor made on the estate of a bank-
rapt, after a petition for approval of a composition, can be taken into calcula-
tion in ascertaining whether the bankrupt has the requisite concurrence.
The estate of Kilpatrick having been sequestrated under July 5. 1887.
the Bankrupt Act, he offered a composition of sixpence in the ltT Dlvl8I0ir.
pound ; and this having been agreed to by the creditors then Lord Newton,
ranked, he presented a petition for approval on the 20th of it-
October 1826, accompanied by a report from the trustee that
the whole creditors who had ranked had concurred. Wighton
thereafter lodged a claim with the trustee, stating that he did
so merely with the view of opposing the petition ; and accord-
ingly he entered appearance, and alleged that the offer was un-
reasonable, and that the bankrupt had not now the requisite con-
currence.
To this it was answered,
1. That the question as to the concurrence must be decided
by the state of the claims at the date of presenting to the
Court the petition for approval of the composition, and the re*
port by the trustee ; and . as he had then the statutory concur-
rence, he could not be affected by subsequent claims on the estate ;
and,
2. That the offer which he had made was quite reasonable.
The Lord Ordinary repelled the objection made by Wighton,
who thereupon reclaimed to the Court. In the mean while, and
after the interlocutor had been pronounced, M'Kenzie, another
< creditor, claimed on the estate ; and when the case came to be
advised, he appeared at the bar, and opposed the approval of the
composition.
Kilpatrick then objected that M'Kenzie was not entitled to
come forward at this stage of the process ; but the Court, with-
out pronouncing any express judgment upon that point, altered, —
found the composition was not reasonable, and therefore refused
the petition.
The Lord Presidknt observed, that a creditor might appear at
any time before judgment was finally pronounced ; but that the com-
position was plainly not reasonable, and therefore could not be ap-
proved of.
896 CASES DECIDED IN THE
Lord Craigie was of the same opinion.
Lord Balgray said nothing upon the first point, but concurred as to
the composition not being reasonable.
Macmillan and Grant, W.&~ D. Scales,— Agents.
No. 436. Harvey's Trustees, Petitioners. — Moir.
J. Leslie, Respondent.— Gordon.
Proof to He in retenti*.— Warrant to take deposition of witnesses to lie in retenti*
limited to those who were seventy years of age and upwards, or in into health,
and commission refused to be granted generally * to any of his Majesty's Jus-
4 tices of the Peace' of a county,
July 5. 1827. The trustees of the late Robert Harvey having presented a
2 Division, petition^praying to have the deposition of certain old witnesses
M»K> taken to lie in retentis pending an action between them and Leslie,
and for commission, inter alia, « to any of his Majesty's Justices
« of the Peace for the county of Aberdeen ;' it was objected by
Leslie, That one of the witnesses was stated by the petitioners
themselves to be only sixty-nine, and that a deposition to lie in
retentis was never allowed on the ground of old age, unless -the
persons proposed to be examined were at least seventy years
old ; and also, that the commission ought to be confined to the
Sheriff or his substitute.
The Court granted commission to the Sheriff or bis substitute,
to take the depositions of such witnesses as shall be ' proved to
' the satisfaction of the commissioner to be above seventy years
* of age, or subject to such indisposition as to produce a risk of
* their evidence being lost.1
«
C. Gordon, W. S. — Mackenzie and Innes, W. S. — Agents*
COURT OF SESSION. 00?
T. J. Fordyce, Suspender. — Ivory —Gibson-Craig. No. 437.
T. Cockburn, Charger. — SoL-Gen* Hope->-More.
Trust — Testament.— A party having conveyed his whole property, and, inter alia?
an heritable bond, to persons who had been nominated his executors in a will
previously executed, or the survivor, in trust for the purposes declared in the will,
or to be declared in any future will ; and having subsequently executed a second
will in the English form, and improbative by the law of Scotland, revoking all
former wills and * testamentary dispositions,' and containing a settlement of all
tys property, including the heritable bond— HeldV-1.— That the trust-deed was.
not revoked ; — and, — 2.— That the survivor of the two trustees was entitled under
it to take up the heritable bond, and obtain an entry from the superior.
The late George Mowbray of Devonshire street, London, held July 5. 1837.
an heritable security for i?2000 over the estate of Ay ton belong- 2d DmgI01f
ing to the suspender. Fordyce. In 1813 he executed a will in Bill-Chamber.
the English form, in which he appointed the charger Cockburn, Lord Newton.
and Captain Charles Grant, now deceased, his executors. This M K*
will was ineffectual to convey heritage, but in 1814 Mn. Mow-
bray executed a regular trust-deed, whereby he disponed his whole
estate, and, inter alia, this heritable debt, to Cockburn and Cap-
tain Grant, c executors named and appointed by me in and by
* my last will and testament, dated 3d August 1813, or to such
f other person or persons as I shall by any future will or deed to
( be made or granted by me, nominate and appoint as executors
* of my last will/ or the acceptor and survivor of them ; but in
trust always, and under provision that ' they shall pay and apply
c the same to the person or persons named, and for the uses and
* purposes expressed, declared, and appointed by the foresaid will.
' made by me, dated the said 3d of August 1813, or to such other
* persons, and for such other uses, ends, and purposes,.as shall
( be expressed, declared, and appointed by me in any other tes-
* tamentary deed, or other writing under my hand, to be granted
* by me at any time of my life, or even on deathbed/ This deed
contained a procuratory of resignation and precept of sasine in
favour of Cockburn and Captain Grant, but in trust as above
mentioned. In 1825 Mr. Mowbray executed a third deed, which
was purely testamentary and incapable of carrying Scotch heri-
tage, whereby he revoked ' all wills and testamentary dispositions
4 by me at any time heretofore made/ and declared this to be his
' last will and testament.1 By this deed he also appointed Cock-
burn his executor along with a Mr. TJWm* and be devised the
£9000 held on heritable security above mentioned to Cockburn
himself, empowering him- ' to sue for and recover the same/
Mr. Mowbray having died in 1826, Cockburn, as surviving
trustee under the trust-deed of 1814, demanded an entry from
898 CASES DECIDED IK THE
Fordyce, of whom the heritable bond over his estate was held
base, to the effect of being entitled to compel payment. Fordyce
then presented a bill of suspension as of a threatened charge for
an entry on the part of Cockburn, in which he stated that he was
willing to give an entry, and pay the debt to Cockburn, if he could
do so in safety, but that the latter was not truly in right of the
debt, for the following reasons :—
1. That while the will of 1826 waa in itself incapable of con-
veying Scotch heritage, it revoked the trust-deed of 1814, which
being a mortis causa settlement, was clearly comprehended in the
term ' testamentary dispositions/ used in the clause of revocation
in that deed.
2. That at all events, if the deed 1814 was not to be held as
expressly revoked by the will 1825, yet, as that will revoked the
previous will of 1818, and the consequent nomination of execu-
tors therein contained, the trust necessarily fell also, as the con-
veyance in it was to Cockburn and Captain Grant as the execu-
tors in that will, and that the other nomination as trustees or exe-
cutors to be named in a subsequent will was inept to effect a con-
veyance of property, more especially as the will 1826, in winch
the second nomination of executors was made, was not a proba-
tive deed by the -law of Scotland ; and,
8. That the destination in favour of Cockburn himself, con-
tained in the will 1825, was ineffectual in respect to heritage, the
deed not being probative.
To this it was answered,
1. That the object of the deceased in executing the trust-deed
was to put his property in such a shape that be could conveniently
dispose of it by will, and that there was evidently no intention to
revoke any deeds but proper testaments.
2. That though the charger and Captain Grant are in the trust-
deed 1814 described to be executors under the will 1818, yet the
conveyance being to them nominatim as trustees, waa perfectly
effectual to carry the property, subject to such appointment as
Mr. Mowbray might afterwards make ; and,
& That the competency of such an appointment waa settled in
the case of Willock v. Auchterlonie ; but that at any rate, though
the appointment in the will 1825 were ineffectual, the charger
was still entitled to an entry in virtue of the trust-deed, leav-
ing the purposes to which as trustee he would be bound to
apply the debt for future discussion with any parties having
interest.
The Lord Ordinary refused the bill, and the Court, after or-
dering Cases, unanimously adhered.
COURT OF SESSION. 899
Lord Justice-Clerk. — I have no difficulty in arriving at the con-
clusion that the Lord Ordinary is right. The only interest Mr.
Fordyce has is to make himself secure in paying the debt, and it
does not appear to me that there is in the will 1825 any declaration
of purpose on the part of Mr. Mowbray to recall the trust-deed of
1814. That deed was executed for the very purpose of enabling
him to aft^ct the heritable debt by a future will, and though he al-
tered the will of 1S13, 1 do not think the revocation of all wills and
testamentary dispositions can possibly include deeds relative to
heritable property in Scotland. I am therefore of opinion that Mr.
Cockburn, as surviving trustee under that deed, is entitled to an
entry.
«
Lord Pitmjlly. — 1 am entirely of the same opinion. The only point
is, bow the feudal title is to be completed, and that depends on
whether the deed 1814 was revoked by the will of 1825, and I am
satisfied that it was not.
Lords Glenlee and Alloway concurred.
Charger' t Authority.— Wlllock 0, Auchterionie, Dec 14. 1769, (££39.)
Gibson-Craios and WardlaW, W. S^-H. Cowan, W. S. — Agents.
H. Anderson, Pursuer. — SoL-Gen. Hope—W. BdL No. 438.
J. Nelson— Jameson — G. BtU.
This was a special case relative to the boundaries of a certain July •• 1837.
property. The Lord Ordinary decerned in favour of Anderson ; l8T divibioh.
but the Court altered, and assoilzied. Lord Eldin.
s.
Anderson and Whitehead, W. S, — W. Hunt, W. S.— Agents.
Madame Sasskn, Pursuer. — Cockburn— Maidment. No. 43$.
Sir J. Campbell, Defender.— «/amm>n — MakgiU.
The pursuer having raised an action for aliment of her child, July 6. 1897.
of which the defender was the father, on the allegation that she lfT division.
had been at the expense of supporting and educating it, moved Ld. Corehouse.
for an interim decree ; but the facts being all disputed, the Lord &
Ordinary refused a decree, and remitted the case to the Jury
Court, and the Court adhered.
J. J. Fraser, W. S. — J. G. Davidson, W. S. — Agents.
900
CASES DECIDED IN THE
•#m
No. 440.
i t
W. Bbodie, Pursuer. — Brown.
Margaeet Beodie and Others, Defenders. — Forsyth.
Homologation— Proees* Atai. 6. Geo. IF. c. lM^— 1 .--Circumstance* under which
a plea of homologation was ee^eUed.— 2.— A party not entitled to food on do-
cuments within his own power, and not produced till after the record was dosed.
July 6. 1827. On the 82d of January 180$, Robert Brodie of Glengartb
1st Division, executed a disposition and deed of settlement, by which he con-
Lord Newton, veyed his whole property, heritable and moveable, to the pur-
s' suer, his eldest sori,'under burden of payments to his widow, and
to the defenders, his younger children ; and he nominated certain
persons to be tutors and curators of the pursuer, who_ was then
in pupillarity. The granter died two days thereafter of a dis-
ease under which he had been labouring for some time* The tu-
tors then proceeded to act, and intromitted with the whole jjteans
and effects conveyed by the will. •
In 1813, and when the pursuer was about seventeen years of
age, the curators brought an action of exoneration against him
before the Sheriff of Ayrshire, in which the Sheriff Substitute,
on the 7th of May, found that they were entitled to give up
their office, reserving the claims against one another. A long liti-
gation then ensued, and on the 5th of September 1817 the She-
riff Depute remitted to the Substitute to adjust the discharge to
be given to the curators, and thereafter to give decree of exoner-
ation in terms of the libel. On the 9th of August preceding the
pursuer had attained majority ; and thereafter a considerable liti-
gation took place. In October 1818 he brought an action of
count and reckoning against the curators in the Court of Session,
libelling upon the deed of settlement, and concluding that they
should .be ordained ' to deliver up to the pursuer the whole writs
* and title-deeds relative, to the heritable and moveable estate
* which pertained to the pursuer's said deceased father, or to him-
' self;1 and also that they should exhibit < an account of charge
' and discharge, stating on one side their intromissions with the
* funds and effects belonging to the pursuer, apd their omissions,
* and on the other the debts they can instruct to have paid, and
' the sums they have laid out for the pursuer's behoof/ It did
not appear that any proceedings took place on this summons, and
in December 1823 he granted a^discharge to, the curators. About
the same time it was alleged that he uplifted a sum of i?15 as
rent which had been due preceding his father's death.
In 1825 he brought an action of reduction of the deed of
settlement on the head of deathbed. This was admitted by the
COURT OF SESSION* 901
defenders* but they pleaded homologation, in support of which
they founded on the proceedings before the Sheriff— on the ..dis-
charge—on the summons of accounting— and on the uplifting of
the -£15.
The Lord Ordinary sustained the defence of homologation,
and assoilzied the defenders, and at the same time issued the fol-
lowing opinion :— 4 The Lord Ordinary, after an attentive exa-
* mination of the voluminous pleadings in the action of exoner-
4 ation at the instance of the pursuer's curators, and the other
( productions in process, is satisfied that the defence of homolo-
4 gation is made out. The action by the curators, no doubt, be-
4 gan while the pursuer was still a minor ; but it continued for
* years, and much litigation followed after 9th August 1817, the
4 date of his majority. The accounting proceeded all along on
4 the footing that the pursuer had, under the settlement, the sole
' right to both heritable and moveable succession ; and, long after
4 his majority, he carried on a keen litigation as to articles in the.
4 account with which, except on this footing, he had no concern.
' Nor does his conduct appear referable to the interest which, as
4 heir subsidiarie liable for his father's debts, he might have had in
* the moveable succession; for it does not appear that the father
* left any debts of consequence, or nearly equal to the moveables.
' The pursuer also proceeded, throughout the whole litigation, as
* if he had had the sole interest in the accounting ; and he uhi-
4 mately discharged the curators of their whole intromissions.
* This discharge was, no doubt, in so far compulsory, that it was
4 granted in terms of a judgment of the' Sheriff ; but 'it was com-
4 pulsory only in regard to the allowances of credit for articles
' which he had disputed. He never hinted, -from first to last,
4 that he was to disclaim the settlement and the moveable suc-
4 cession ; on the contrary, he assumed all along the right of can-
' vassing the accounts as the person solely interested ; and he
4 granted the discharge in this character. Further, there is evi-
4 dence produced, that, after the termination of the process, the
< pursuer uplifted a sum of £\S as rent due at the term preceoV
4 ing his father's death, and making a part of the moveable suc-
4 cession, to which he could have had no right but under the
4 settlement which he is attempting to reduce by the present ac-
4 tion.'
After the record had been closed on the summons and de-
fences, the" pursuer produced certain letters which were in his
possession ; and, after the judgment of the Lord Ordinary, he
produced in the Inner House a second extract of a decree' of
absolvitor in absence from an action at the instance of the de<*
VOL. V. 3 M
got CASES UEClDfiD IN TflE
t
fetoders against hirii,-±-th6 first extract of which lie allied had
gotie ataisang. ittfe defenders having objected to these docu-
ments bring received, the Court sustained the objection ; but,
on the merits, altered the interlocutor, and decerned in terms of
the libel.
Lord Baloray I do not think that there is sufficient evidence to
make out a case of homologation. We cannot take into consider-
ation what was done during the ptmuer's minority. The action of
accounting was brought recently after he attained majority, and it
is impossible to construe that as a conclusive act of homologation.
Lord President. — I rather think that the case should be remitted to
the Jury Conrt;but, as the case stands, there it no ^Tectusi homolo-
gation.
Lord GiLLiss**-^FIiere k no satisfactory evidence as to the unfitting
of the £15.
Loft* Craigie thought that the judgment was fight.
J. Crawford, W. S*-J. Stuart, S. S. C— Agents,
No. 441. T. Nicot, Pursuer.— A. ATNeUL
Anderson's Trustees, Defenders. — Grcenskidds.
July 6. 1827. This was a question as to the title of the pursuer, which was
l D visum, farobral in special circumstances. The Lord Ordinary found he
Lord Newton, had no title, and the Court adhered.
9.
C. Fishbr,— T. John stohk, & 6. C^-Agents.
M*>^MMa^i«4MWM^M^*i
Resolution of the Faculty of Advocate* as to Signing Papers.
It is proper to make practitioners swart that, on the an of July 1W7, the
Faculty of Advocates ** Rssolved that in future every counsel shall aaux to the back
of the draft of each paper drawn by him the title of the paper, and naose *f the
parties and agent, as now in use ; and shall mark with his own hand, on the back
of each draft, the date of the paper, and under the date shall subscribe his nana
according to his usual mode of subscription ; and every Member of Faculty is is
future strictly prohibited from signing for another any paper, incidental or ether
papers, without having exhibited to him the draft dated and subscribed by the
counsel for whom he signs ;— «nd that any contravention of this rule by any Jtem-
ber of the Faculty shall be held a breach of professional propriety, and of the regu-
lations of the Faculty, for which he shall be answerable U the Dean and ata Coun-
cil, and to the Faculty. And further, the Facujiy dhwcted thmtmm +mtom^*i£ tfcfr
minute shall be printed and circulated among all the Members of Faculty, and that
copies thereof shall be transmitted to the Society of Writers to the Sgnet, and Is
tbe Society of Solicitors before the Supreme Courts."
CQURtT OP SESSION. 90ft
t •
T
Mr Rgwand, Pursuer.^KKeayT-More. No. 442.
N. Stb vbnsok/ Defender.— X). gf jF. MoncreiJL-Sol.-Qen. Hope
—Gr4en*hield8.
Agent and Client— Reparation.— L&w agent found liable for the low arising from
an heritable security not having been effectually completed.
Afteb the judgment bad been pronounced in the competition July 6. 1827.
mentioned ante, Vol III. No. 141, (which see,) Aowand raised 2d divkiov.
an action against Stevenson, the agent whom he bad employed Ld. cringietie.
to prepare the heritable security which had been postponed in that B.
competition* in consequence of the neglect to obtun confirmation^
concluding] to have him found liable in the amount. In defence
Stevensoa pleaded, That the great difficulty which .the First Divi-
sion of the Court had experienced in determining the question of,
the sufficiency of the security, proved that his error was not of
such a gross character as should subject him in the damage there- *
by arising, more especially as it was a communis error among the
conveyancers of Glasgow ; and he averred that he had warned
Rowand of the insufficiency. Being unable, however, to estab-
lish this, or to condescend on any sufficiently specific allegations
to that effect, the Court, on the report of the Lord Ordinary,
decerned in terms of the libel.
Pursuer1 • Authorities.— Struthen 0. Lang, Feb. 2. 1826, (ante, Vol. IV. No. 281. )
and Cases there cited.
W. Allkster, — T. Darling, — Agents,
Mrs. Janet Davie or Laing, Pursuer, — Shaw Steward jyj0> aaq
W. Denny, Defender.— SoL-Gen. Hvpe~Bo*xeelL
Husband and Wife—Fraud. —Circumstances under which a lease by a husband -to
his nephew and an heir-portioner was set aside, as in fraudem of an unrecorded
liferent infeftment granted to his wife intuitu matrimonii.
The late William Laing, intuitu matrimonii with the pursuer, juiy g. ig©^
infeft her in the liferent of certain houses and property adjacent ^ r
to the town of Dumbarton, and the infeftment was recorded- in- j^# Robertson*
the burgh registers. The parties were married in 1810, but soon M'K.
after separated, and shortly before his death in 1812, Laing
granted to the defender Denny, his nephew, (and who also suc-
ceeded to him as an heir-pbrtioner,) a lease of the property in
question for 60 years, for a rent of £2 per annum, and an alleged
grassum of jPIOO, with an obligation on the landlord to keep the
houses in repair. On his death the pursuer brought an action to
8m*
90* CASES DECIDED IN THE
have this lease set aside as in fraudem of the liferent granted her
by the deceased intuitu matrimonii. This action was met by the
defence. That as the subjects were not burgage, her infeftment
was not duly recorded, being registered in the burgh books, and
not in the register for the district, and consequently that she had
no title to. pursue ; but the Court repelled this objection as in a
question with a party representing the granter of the right* The
case then fell asleep ; but having been awakened, it was reported
on informations to the Court, who again sustained the pursuer's
title, and appointed a condescendence by the defender of the facts
he offered to prove in support of his lease. The defender ad-
mitted that the value of the subjects was at least JP1S yearly ; but
in his condescendence he alleged, inter alia, that the graasum of
£ 100, which the lease acknowledged to have been paid, and the
£% of rent stipulated, made a fair consideration for the lease.
On the other hand, the pursuer averred that the graasum had
not been paid ; but the Court, holding that the facts admitted in
the case were sufficient to entitle her to succeed, and that the
averments of the defender were not relevant to support his de-
fence, without requiring any proof, unanimously reduced and
decerned in terms of the libel.
9
Loan Justicb-Clkrk. — Taking the facts, as to which there is no
dispute, there are sufficient grounds for deciding this case. Tbe
question is, Whether the lease under reduction was a due exercise
of administration on the part of Laing, or was in fraudem of las
wife's right ? It is granted for 60 years, with an obligation on the
landlord to keep the houses in repair, and if that is done, it is
clear there can be no free rent at all ; so that, even supposing the
gras8um to have been paid, I am clearly of opinion tint the hus-
band was not entitled thus to defeat his wife's right, and that
there are sufficient grounds for reducing as in fraudem of her pro-
vision.
The other Judges concurred.
W. Patrick, W. S.--J. Blair, W. 8.— Agents,
• See Davie t>. Denny, June 2. 1814, (F. C.)
COURT OP SESSION. 905
D. Kirk, Pursuer.— Maitland MakgiU. No. 444.
W. Kirk, Defender.— Sol.-Gen. Hope— McNeill.
Decree in Absence— R*dMetien~Bj&en*es+^\TcxuMtoXiceB in which the Court re-
(faced decrees of constitution and adjudication in absence, without requiring the
party to pay the expenses of the decrees.
William Kirk, a blacksmith, having raised a process of con- juiy e. 1817.
stitution against his brother David of an alleged debt of <£116, '
obtained decree in absence, and thereafter brought an adjudica- j^ Medwyn.
tion of a small heritable property belonging to David, in which M'K.
decree in absence was pronounced. On this decree he got a
charter of adjudication, on which he was infeft. The summonses
in these actions were executed against David personally ; but he
was during the whole period in jail, and in a state of poverty. On
his liberation, he raised a reduction of the decrees of constitution
and adjudication, on the ground that the account on which the
decrees proceeded was unvouched, and that a voucher which had
been produced for the greater part of the sum was vitiated in
essentialibus ; and he also concluded for an accounting. Against
this action William gave in defences on the merits, and in his
note of pleas in law he inserted a plea, that David must pay the
expenses of the constitution and adjudication before he could be
heard in the reduction. The Lord Ordinary disregarded this
plea, and 4 in respect that the voucher of the first article of the
' account, for which the decreets of constitution and of adjudica-
' tion were obtained in absence, is vitiated in the date, so that it
' does not constitute a legal voucher of debt,' reduced in terms of
the libel, and appointed David to give in a condescendence of
his claims in the accounting. To this interlocutor the Court ad-
hered, reserving to the defender to found in the accounting on
the voucher alluded to, and support the same, and to the pursuer
all objections thereto.
Defender* $ Authority.— Smyth, March 9. 1826, (ante, Vol. IT. No. 351.) .
W. Walker, W. S— J. Youhg, W. S— Agents.
966 CASES DECIDED IN THE
No. 445. B. Fleming,' Pursuer.— D. qfF. Mancre&ff—Jamuon*
Wilson and MTellan, Defenders. — Skene — Fletcher.
Submission — Homologation.— A submission having been entered into without any
limitation in point of time, and not containing the usual blank clause appBcaMe
to the endurance, and the parties having, alter the expirjrof a year, gone on plead-
ing and leading proof before the arbiters and oversman — Held, in a reduction of
a decreet-arbitral afterwards pronounced,— 1.— That the submission did not
Tall by the lapse of the year ;— -and,— 9. — That at any rate the parties had proro-
gated it by their conduct.
July 7. 1837. Fleming, a merchant in Glasgow, and Wilson and M'Lellan,
2 Div s h merchants in Greenock, entered into a reference by a joint missive
Lds. Mackenzie addressed to two gentlemen agreed upon as arbiters, in the follow-
and Eldin. ing terms :— c Gentlemen, — Some cotton wool which was brought
* down in the ship Science's long-boat from the city of Savannah
* to Five Fathom Hole for shipping on board the said vessel for
* Clyde, having been damaged, as alleged by the captain, in con-
' sequence of a thunder squall overtaking her on her way down
' the river, we, the owners of the said ship, and also the proprietors
* of the cotton wool, hereby submit to your decision which party
' ought and should sustain the loss occasioned by tbe damage on
. ' the said cotton. You have full power to call for such documents
' and papers as you may think necessary, as also examine such
. ' persons connected with the business as you may judge proper.
( Should it so happen that you do not agree in opinion, you are
' at liberty to elect an oversman ; and your decision is to be final
' and binding on both parties.' This missive was dated 2d Sep-
tember 1818. In November 1819 the arbiters, in consequence
of a difference of opinion, nominated an oversman. There had
been no prorogation of the submission ; but both parties appeared
personally and pleaded before the oversman, and in particular,
Fleming addressed several holograph letters to him as umpire,
asking delay for the examination of a witness; and, after a judg-
ment had. been given. against him by the oversman, he gave in
observations reclaiming against it. To these observations, pre-
pared by his law agent, Fleming himself added a note, in which
he prayed the oversman ( to withdraw his late interlocutor, it-
* sume the case de novo, and order Wilson and M'LeDan to
* produce their evidence again before the arbiter, that time may
' be given for Mr. Fleming to bring up his witness, Mr. Walker.*
The oversman finally, in December 1821, adhered to his former
judgment, and a regular decreet-arbitral was extended, of date
March 29. 1822. Of this decree Fleming brought a reduction, on
the ground, inter alia, that the submission had expired by tbe
COUBT OF SESSION. 907
Iqpse of a, year nod day without any prorogation. la defence it
:w*8 pleaded,
1. That submissions only expire by the lapae of a yeaj and day,
where there is the usual clause restricting their duration with
.the day blank ; but that where k is indefinite, and does not pro-
vide that the decree shaH be 'pronounced ' between and the
* day of next to come,9 the sub-
mission lasts for forty years ; and,
2. That supposing the submission to have expired, Fleming
had prorogated by homologation, as he must be held to have
4tnown the legal consequence of the submission being indefinite
as to duration, and he was in knowledge of the expiry of the year
when he committed the acts inferring homologation.
To this it was answered by Fleming,
1. That all submissions fell by lapse of the year and day, un-
less specially extended beyond that period ; and,
2. That no acts of his could infer homologation, unless there
was evidence to show that he knew, at the time, that the submis-
sion bad expired.
Lord Mackenzie assoilzied Wilson and M'Lellan ; but Lord
Eldin altered bis Lordship's interlocutor, and found * th^t the
* submission in question contained no power of prorogation, and
' that it expired in a year and day from its date ;— that after the
* expiry of year and day the arbiters differed in opinion, and
4 thereupon appointed an oversman, who took various steps in the
* submission, as if it had not expired ; — that there are no grounds
' to believe that either the arbiters or the parties knew that the
4 submission had so expired ; and in particular finds no evidence
4 whatever that the pursuer knew that he was no longer bound
4 by the submission, or consented to homologate the same;' and
therefore decerned in the reduction. The Court at first, by a ma-
jority, adhered to this interlocutor ; but being equally divided on
advising a reclaiming petition, Jhey took the opinion .of the oth^r
Judges, and, egneeablyto the opinion of tbcmajaaty, altered .*nd
assoilzied.
By .the consulted .Juflges the following opinions were returned:*—
£<Q!tD6 Pr*SIP.3PT, QlWMKUFj SASHAY, GlJJJJ»8, MEAnOW,BA#rK,
Corbhousb, and New*on< — As the letter of .reference ^between
these parties is not limited to any determinate time, within which
the arbiters or oversman were to give their award, and does not
contain the usual blank, as applicable to the duration of the
power of the arbiters, we are of opinion that the powers of the
arbiters and oversman did not expire at the lapse of a year from
the date of the letter of reference, and that the parties were
bound by the award, at whatever time pronounced.
i
908 CASES DECIDED IN THE
Secondly, At any rate, we* are of opinion' that the conduct of
both parties in continuing to plead and lead proof before the
arbiters and oversman long -after the lapse of a year from the
date of the letter of reference, does amoant to complete homolo-
gation of their proceedings, or rather, to speak more correctly,
.does amount to a prorogation of the time for pronouncing decrect-
arbitral ; and, consequently, that neither party can object to the
decreet so pronounced.
• Lord Mackenzie. — :I concur in the above opinion, with this further
observation, that even supposing a submission without any express
limitation in respect of time, or any blank in the part relating to
, time, were to be held limited to a year, still this would only be from
' presumption of the intention of the parties to adopt one year as a
usual or reasonable time. Now, I think in this case the circum-
stances and the conduct of the parties afford sufficient grounds
for excluding any such presumption.
Lord Medwyn. — I concur on the first ground, and think it un-
necessary to say any thing as to the second ground stated above.
Lord Cringletie. — I concur in the opinion' that the reference
did not expire with the lapse of a year after its date ; and 1 flunk
that the after conduct of the parties proves that this was their
' original intention, and this their understanding of the transaction.
Lord Eldin. — I adhere, to my opinion expressed in my interlocutor,
• dated the 11th March 1824.
The Judges of the Second Division were anarasBOns in holding that
the submission fell at the expiry of the year, bat were divided in
opinion as to the question of homologation, Lords Justice-Clerk
and Pitmilly (and also Lord Robertson, who was oa the Beach at
the first advising,) holding that there could be no honoJogitiofl
inferred from Fleming's conduct, unless it could be, aide oat that
he was aware that the submission did expire by the ksetof&e
..year; while Lords Glenlee and Alloway entertained options on
this point similar to that of the majority of the consulted Jodges.
Purtuer'* AtUhoritiei<--(\.)-- Balfour, p. 400; 1. Bank. 23. 2; SeDartowoliill,
March 1593, (635) ; Johnstone, July 6. 1610, (637) ; Menafea, Feb. 1666, (639);
Wallace, Feb. 83. 1673, (639) ; Stark v. Thorn, Dec. 83. 1820, (not naj-fc-
3. Erik. 3. 48 ; Thomson ». Norton, Jan. 28. 1818, (F. C.)
Defender*' AutAorities.—(l.y-4. £nk. 3. 89.— (8.)— Ersk. L 2. 27. iS. 8,43-7;
Gardner, July 10. 1741, (Elchies,*. Arbitration, S); TeHer, Jan. 21. 1735,(565?);
Taylor, Nov. 86. 1800, (Ap. 1. Arbitration, fl,)
Campbell and Mac do wall, — Gibson-Cr aigs and Wardlaw,^
Agents.
j
COURT OF SESSION. 9W\
*
J. Mitchell, Advocator.— Futterton — Hopkirk. No. 446.
J.. Feew and Others, Respondents. — Sol^Gen. Hope —
Robertson — P. Dundas.
Road -^.—Proprietors of a canal not entitled by themselves or others to use the
towing-path as a road for carriages or carts conveying passengers who had come
by their boats, so as to avoid going along a turnpike road on which they must
have paid toll, the Road Act prohibiting the use of any private passage or way
whereby the payment of toll might be avoided.
Br the act of Parliament for making the Forth and Clyde July 7. 1827*
canal, the proprietors were empowered to form and repair * tow- 2d DlvIBI0|fo
' ing-paths on the sides thereof, and also to make, erect, or do all Ld. Cringletie.
* other matters or things which they shall think necessary and *•
' convenient for the making, effecting, extending, improving,
* completing, and using the said navigation, in pursuance and
* within the true meaning of this act1 Some time after the canal
was completed, the company of proprietors established track-boats
on it for the conveyance of passengers between Glasgow and the
Forth ; but, in consequence of the great number of locks situated
at the end where it joins the Forth, the boat stopped at lock
No. 16 near Falkirk, and the passengers, with their luggage, were
thence conveyed to Grangemouth, where the canal ends, being a
distance of about four miles, in coaches and carts, some of which
were the property of the Canal Company, and were driven by
their servants, while others belonged to private individuals {dying
by permission of the company. The regular road from lock
No. 16 to Grangemouth was in a direction nearly parallel to the
canal, till it joined a road called the Kerse road, which had been
formed subsequently to the canal, and had a direction at right angles
to it* After proceeding along the Kerse road for a short distance,
the Grangemouth road again struck off, and proceeded, as before,
parallel to the canal, though at some distance from it. On the
Kerse road, at that part over which carriages, &c. proceeding from
lock No. 16 to Grangemouth were obliged to pass, was situated a
toll-bar, at which all passengers between these two points were
obliged to pay toll, and there was no other communication, except
by the canal and its banks. Instead of taking this road, the pas-
sengers by the canal boats were conveyed along the towing-path
of die canal, whereby they avoided the turnpike road entirely, ex-
cept merely crossing it at the point where the Kerse road and the
canal intersected each other. These carriages on their way also di-
verged to Falkirk by another turnpike road, which, however, had
no toll-bar between the canal and Falkirk. This practice was long
allowed to go on without interruption ; but the advocator Mitchell,
eiO CASES DECIDED IN THE
who was tacksman of the toll on the Kerse road for 1821-82, con-
ceiving that the proprietors and drivers of these coaches were guilty
of an infringement of the act of Parliament for that road, which
contained the usual clause prohibiting, under a penalty, riding
or driving through any private passage or way whereby the pay-
ment of tolls should he avoided, raised an action before the Justices
of Peace of Stirlingshire against Frew &&, driven and individual
proprietors of the several coacheeand carta which plied between lock
No. 16 and Grangemouth, concluding for conviction in the penal-
ties of the statute. This action the Justices dismissed as incom-
petent at the instance of the tacksman, without concurrence of the
treasurer of the trustees ; whereupon Mitchell obtained their con-
currence to a new action, which, however, from the delay occa-
sioned, could only apply to the penalties during the last six months
of his tack, in consequence of a limitation in the statute.
In defence against this action, it was pleaded by the coach-
drivers, That the sole object of the coaches was to convey to the
end of the canal, passengers brought by the boats, which could
not, from the number of locks, go through the canal itself without
great delay, and that the coaches were therefore for furthering the
navigation within the meaning of the canaj statute ; and besides,
that the coaches did not go 100 yards akmg the Kerse road, but
merely crossed it; and that this road was not one parallel to the
canal, but at right angles to it, and could not properly be evaded
by coaches going along the canal bank.
To this it was answered, That the carrying of passengers in
•coaches could never be construed. as using the towyig-peihs for
the purposes of navigation ; and besides, that the coaches canned
passengers to Falkirk, and persons who had not come by the
canal boat ; — that the direction of the road was of no consequence,
as no person could go from lock No. 16 to Grangemouth with-
out paying toll, and using the towing-path enabled Frew fee to
evade the toll; and that the complaint waa, not that the parties
travelled the road, and pud no toll, but that they illegally avoided
the road and toll altogether* The Justices having in this ac-
tion ultimately assoilzied Frew &c., Mitchell brought an ad'
tien, and he also thereafter advocated the first process ob
gentiam.
In the first process thfeXord Ordinary renuUed simplioler ; aswl
hisi interlocutor having, been brought under review, by a recus-
ing note, his Lordship reported the second process on Cases- The
Court, appointed. Frew fee to put in a. minute statin; in what
relation they stood to the Canal Company, .and whether they
conveyed other, persons than passengers by the canal A
COURT OF SESSION. 911
was accordingly lodged, in which it was stated that some were
servant* of the company, and others individual proprietors of
coaches or their drivers ; and that the object of the coaches was
solely to convey canal passengers, though other persons might
sometimes travel in them. The Court thereafter conjoined the
two processes, and decerned against Frew &c. in the second ac-
tion ; and in the first altered the Lord Ordinary's interlocutor,
and remitted to his Lordship to hear parties on the objection to
the title of Mitchell to pursue in his own name.
A. Wish art, W. S — J. G. Hopkirk, W. S. — Agents.
H. Rose and Others, Advocators.— Skene. No. 4#7#
Magistrates <rf Tain, Respondents.—/). ofF. Mvncreijf—
Qordan.
Juritdicti(n*—Skerijr--Tbirlafe,~-He\& that it U incompetent for a Sheriff, in a pro-
cess of commutation of thirlage, to entertain a question as to the existence of a
right of thirlage over certain lands, where- it is not constituted by written title
over these lands per expaessmn, or established by decree of the Supreme Court.
The Magistrates of Tain, proprietors under a royal char- July 7* 1827.
ter of the mills of the burgh, with c the mill lands, multures and jD Dinsioir.
* sequels of the same,9 raised before the Sheriff of Ross-shire a Ld. Mackenzie,
process of- commutation of thirlage, in which they called, inter B-
alia, Rose and others, proprietors of lands which they alleged to
be subject to the thirl. Certain of these lands were denied to be
subject to the thirl ; and the Sheriff having pronounced an inter-
locutor allowing a proof of the possession, under which a proof
was in part taken, Rose &c brought an advocation, on the ground
that the Magistrates had produced no express written title of
thirlage over the lands in question, and no declarator of thirlage
by the Supreme Court ; and that it was incompetent for the Sheriff
to entertain a question of real right. To this it was answered,
That the lands in question had been originally held of the Crown
by the burgh, and were situated within the liberties ; and that the
royal charter, therefore, containing a grant of multures, must be
presumed to extend over all the lands within the liberties, though
not mentioned per expressum.
The Lord Ordinary, ( in respect the respondents have not
* produced an extract of a decree of declarator of this Court, or
' any evidence of such decree/ remitted to the Sheriff to dismiss
the action * in so far as regarded the lands which are denied to
« be thirled ;' and the Court unanimously adhered, under a reser-
vation in favour of the respondents to found, in any declarator
912 CASES DECIDED IN THE
they might bring, on the depositions of certain old witnesses which
had been taken, by warrant of this Court, to lie in retenti»;»bat
their Lordships at the same time refused to insert a similar re*
servation as to the evidence which had been taken in the Inferior
Court prior to the advocation.
Horns and Rose, W.S. — A. Storie, W. S. — Agents.
No. 448. J' Eyre and Others, Suspenders.— Skene.
Earl of Moray, Charger.— J?. Bruce.
River— ^AWi'janwe.— Circumstances under which it was held that a party vat aot
entitled to introduce the contents of a common sewer into a mill-lead.
#
July 10. 1827. The Earl of Moray having begun to form a sewer from the
~d — buildings in Moray place, Edinburgh, to introduce the sewage
Lord Eldin. w&ter into the mill-lead which supplies Canonmills, Eyre and
H. others, proprietors of lands and houses adjoining to the mill-lead,
brought a suspension and interdict, oft the ground,
1. That the Earl had no right to the mill-lead, whereas they
were proprietors of it, or at least had a vested interest in it ;— that
the proposed sewer was an encroachment which they were en-
titled to resist ; — and,
2. That it would be a nuisance.
At the same time a suspension was brought by Downie and
others against an attempt by the Earl to connect the sewer with
the Water of Leith ; and in that case the Court, on the I£th of
November 1825, found that he was entitled to do so. (See ante,
Vol. IV. No. 146.)
In the suspension, therefore, by Eyre and others, the Court
adhered to an interlocutor of the Lord Ordinary suspending the
letters, and granting interdict ; and thereafter, on a petition, they
superseded judgment till it should be seen whether Downie and
others entered an appeal ; but it being now intimated that they
did not intend to do so, the Court adhered. -
J. A. Cheynk, W. S.— J. Wauchopk, W. S—Agorts.
COURT OF SESSION. 81ft
Heritors of Strathblank, Suspenders. — Jeffrey— Skene. No."*440.
Dr. Hamilton, Charger. — Sol-Gen. Hope — Jameson.
Manse.— Held<— I.— -That it is competent for a presbytery to order additions to
be built to an old manse, so ai to render it suifctbJa for the minister ; — and,— 2.
—That the heritors are bound to be at the expense of making the manse free
from damp.
Dr. Hamilton, minister of Strathblarie, presented a petition July 10. 1887.
to the Presbytery of Dumbarton, stating that his manse had been- lfT DmiIolf.
erected in 1732— -that it was incurably damp— in a state of great Lord Eldin.
disrepair, and most incommodious, there being only two public D-
apartments on the lower, and four bed-rooms in the upper floor,
besides kitchen and offices— -that the public rooms were extremely
small, being only about 15 feet by 14, and the height 1\ feet
The presbytery, after obtaining the report of tradesmen, found
' that the manse is repairable ; that though repaired, it will not
( afford sufficient accommodation to the minister ; and that as all
* the apartments are small in size, and low in the roof, there is
* required the additional accommodation of two public rooms of
'moderate dimensions;' and therefore they ordained ' that, be-
* sides repairs, such an addition shall be made to the manse.'
Several of the heritors brought a suspension of this judgment,
on the ground,
1. That the presbytery had no power to decern for additions,
aa had been found in the case of Dalmeny ; and,
2. That the heritors were willing to make the manse dry by
means of proper drains, and to put it into a fit state of repair.
To this it was answered,
1. That it had1 been repeatedly found that it was competent
both for the presbytery and the Court to order additions to be
made; and*
2. That, from the position of the manse, it was scarcely pos-
sible to render it permanently dry ; and that although part of it
had been rebuilt about 32 years ago, yet the main walls were of
such antiquity, and the rooms so small, that it cotdd not be made
a commodious manse without considerable additions.
The Lord Ordinary, before answer, remitted to Robert Wright,
Dean of Guild of Edinburgh, ' to inspect the manse of Strath-
' blane, and report, first, how far the manse is defective in safety,
' comfort, and accommodation for the use of a minister of that
4 parish ; and, second, whether by any, or if by any, by what re- %
* parations, alterations, or additions it may be rendered a suffi-
' cient manse, and at what expense/
»* CASES DECIDED IN THE
He reported that the floors and joisting were in a decayed and
rotten state; that the roof and walls were, good, with the escsp-
tion of the west gable, which was insecure, and must be rebuilt ;
that the house was damp, and that, to obviate this, besides drains,
it would be necessary to-rajseotbe floors of the rooms ^ifet;
that the accommodation was insufficient, and'thafa the aspen* of
making it a proper manse would be nearly as much as that of a
new one.
The Lord Ordinary having reported the ease* the Court ' re-
« pelled the reasons of suspension*, recalled the interdict, and
< found the letters orderly proceeded ; and further found that the
« heritors are bound to be at the expense of making the mane
( completely dry and free from damp 4 remitted to the presbytery
' to proceed' accordingly,' and found the suspenders liable in ex-
penses.
Loan Baxgray. — The heritors, must make the manse dry tad com-
fortable ; but how this is to be done, it is somewhat difficult to tee.
I think also that there must be an addition built to the mane, for
it is quite insufficient for the accommodation of a clergyman within
family, and for those who nuist necessarily reside in the hone oa
occasion of dispensing the sacrament. It would certainly be more
advisable to build a new manse, because it generally happen that
the expense of repairs considerably exceeds the cost of a new one*
Loan President. — I was counsel in the case of Dalmeny, wafcawat
altogether different from the present one. The manse wn net tea
years old, and it did not require any repairs ; but the nuannr
thought it was too small for him* and therefore he wMnitohare
an addition. The Court, however, were of opinion that tot. sane.
had been too recently erected to warrant any anon addition, uA
therefore they refused to allow them* In the Other eases wbicb ire
noticed in the papeas, both additions, and repaint ware ordered.
Loan Craigik. — I reported the case of Dalmeny, and I think itrnja
laid down ae a general rub, that the Court oeukl not, under the sta-
tute, authorize additions: to be made.
Lord Gn, libs—I am perfectly dear that the miniate* nuqt Invaa
good and sufficient manse ; but the question as. to the addition a
attended with, difficulty. I dunk the minister should at once claim
a new manse.
&upender$> Authoritiet .— Robertson, July 28. 1788, (8515) ; Council oa tab*
305.
Charger'* ^oWtfw.-~CooDaH, 305,300,30?.
J. and W. Fkbbier, W, S.— A. Clason, W. S,— Agents.
COURT OF SESSION. 815
■
Magistrates of Glasgow, Vetitionet*.-*-Qrcenshield*. No. 450*
Dawsok and Mitchell, Respondents.— Alison.
frthto— ■ Protf ia He in rrt*»a>.— -Warrant granted to take the depositions of wit-
. mmci, to fie in rttenta, who were seventy yean old and upwards, in danger of
life, or about to leave the country.
The Magistrates of Glasgow having, in a depending process July 10. 18*7.
between them and the respondents, applied for leave to take the lw £>miI0Jt
deposition of a witness, to lie in retentis, who was 79 years old, h.
the Court granted warrant in favour of both parties for taking
the depositions of such witnesses as should be shown by proper
certificates to be above 70 years of age, in danger of life, or about
to leave the country,— all to lie in retentis.
W. Dickson, W. S—P. Tbnnent, W. S*— Agents.
B. Duklop, Pursuer.— Buchanan. No. 451.
D. Nicolsoh, Defender.— BotweU.
Citation.— Circumstances under which a party was allowed to found on a service
copy, to show that the citation was erroneous.
Dun lop raised an action against Nicolson, who objected that July 10. 1887.
he had not been duly cited. In support of this, he stated that a jOTDmiMW
copy had been served upon him dated the 21st day of April 1827, Lord Eldin."
calling on him to appear on the^lst of June thereafter; that H«
another was served upon him on the 25th of April, citing him for
the 24th of June, and that to this copy there was subjoined a
postscript, that * this citation and double preceding is served in
* place of the double and citation served upon you on the 21st
* day of April current, which is departed from, and this service
* is to be held as the real and correct one.' The execution, which
was produced, was dated the 25th of April 1827, and stated that
Nicolson had been cited to appear on the 24th May thereafter,
conform to citation served upon him of the above date, * and de-
c parting from the double and copy of citation served on the 21st
' day of April current, and holding the double and copy citation
' of this date as the correct one.* It was therefore maintained by
Nicolson, That as he was cited to appear on the 24th of June,
and the execution bore that he was cited to the 24th of May, the
citation was irregular.
In answer to this defence Dunlop pleaded, That as no impro-
bation had been brought of the execution, it must bear implicit
faith, and could not be contradicted by the copy, the authenti-
city of which was not admitted.
916 CASES DECIDED IN THE
The Lord Ordinary repelled the defence ; but the Court alter-
1 ed, and found that*, in the Special circumstances of thia case, the
citation was irregular, and therefore sustained the defence.
The Judges held that this was to be regarded as a case of a specisl
nature, and not to affect the general rule that a formal execution
could not be contradicted by the service copy.
. * * * *
R. Dunlop, W. S^-D. Clyne, S. S. C— Agents.
* »
No. 452. T. Scot, Suspender.— Skene— Marshall
Lbith Banking Company, Chargers.— FuBerton--Jnd£r*on.
July 10. 1897. This was a question as to whether the chargers were onerous
1st Division, holders of a bill charged on, or not No reference of oath being
Bill-Chamber, made, nor writ produced to prove that they were not onerous,
Lord Newton, the Lord Ordinary refused a bill of suspension by Scot, and the
D# Court adhered.
R. W. Niven, W. S.— J. Bisset, S. S. C— Agents.
No* 453. ^* M'Kenzie, Suspender.— FuUerton.
H. Rose, Charger. — Sandfbrd.
Process. — A charger in the Bill-Chamber having omitted to intimate the lodging of
his answers, and an interlocutor prejudicial to the suspender hafmg been pro-
nounced, a remit made to hear the suspender.
July 10. 1827. •' M'Kknzie presented a bill of suspension and interdict against
_ Rose, to prevent him fishing in a river to which M'Kenne alleged
Bill-Chamber, he had the exclusive right. Answers having been lodged, but
Lord Newton, no intimation given, the Lord Ordinary passed the bill, but re»
D- fused the interdict. M'Kenzie then reclaimed, add contended,
That as the lodging of the answers had not been intimated, and
he was thereby prevented from being heard before Che Lord Ordi-
nary, he was still entitled to be heard. The Court accordingly
remitted to the Lord Ordinary to hear parties as to Ae interdict.
H. Macqukbn, W. &— Horve and Ross, W. &— Ageott.
*
COURT OF SESSION. 917
G. Hodge rs atid Others, Pursuers. — Jeffrey — Penney, No. 4£4.
T. Habvie, Defender.— D. of F. Moncreiff— Skene.
Boad— pretcripti on.— The use of a road, chiefly for the purposes of recreation,
haying been enjoyed by the public beyond the memory of man, and antecedent
to all interruption— Held that subsequent. interruptions, which did not prevent
the use and enjoyment of the road, were* not sufficient to deprive the public of
their right.
Rodger s and others having brought an action of declarator July 10. 1827.
of their right to a public footpath along the banks of the river 2 D
Clyde from Glasgow to Carmyle, which had been shut up in Jur court,
spring 1822 by Harvie, proprietor of fhe lands of Westhorn M'K.
through which the footpath passed, the following issue was sent
to trial before a Jury :— ' Whether, for forty years and upwards
' prior to the months of March, April, or May 1822, there existed
* a public footpath or footroad along the right bank of the river
' Clyde from the city of Glasgow, from the place called the Green
c to the village of Carmyle, situated on the said bank of the
' river?' On the trial the pursuers adduced in evidence a series
of witnesses, some of them upwards of eighty years old, who de-
poned, that as far back as they could remember, and down to the
interruption in 1822, there was a footpath on the bank of the
Clyde the whole way from Glasgow to Carmyle ; — that it was
open to the public, and constantly used by all classes of people,
but chiefly for recreation ; and that though there were fences be-
tween the different properties through which the road passed,
yet there were stiles or openings for passengers going along the
footpath.. On the other hand, the defender, after giving in evi-
dence the title-deeds of his estate of Westhorn, which described
the lands as bounded by the Clyde, and contained no reservation
of 'a right of way by the river side, adduced a number of witnesses
to prove that at several periods attempts had been made by dif-
ferent proprietors along the Clyde, and among others by the de-
fender and his authors, to stop the path by erecting fences or
cutting ditches, and by turning back individuals who were going
along it. The curliest of these attempted interruptions, however,
appeared to have been in 1789, and none of them bad in any de»
gree the effect of preventing the use of the road by the public,
who, by breaking down the fences, kept, the communication open,
and constantly enjoyed the road till 1822, when the defender
effectually stopped their progress by a wall. He further adduced
evidence to prove that the distance from Glasgow to Carmyle by
the public road was only four miles, while by that in question it was
vol. v. 8 n
918 CASES DECIDED IN THE
seven miles. On this evidence the Lord Chief Commissioner,
who tried the cause, directed the Jury to find for the pursuers.
The Jury accordingly returned a verdict for the pursuers, and
the defender, after an unsuccessful attempt to have it set aside as
contrary to evidence, tendered a Bill of Exceptions, in support of
which he contended,
1. That to establish a right to a public road, it was necessary
to prove uninterrupted and peaceable possession on the part of
the public, and acquiesced in by the proprietor, for forty years ;
but that, in the present case, the possession having been conti-
nually resisted and disturbed, and not having been acquiesced in
by the proprietors, it could not establish aright of road ; and con-
sequently that it was not necessary for the pursuer to prove that
the interruptions had been acquiesced in by the public, as they
had actually acquired no right which it required interruption to
deprive them of ; and,
&. That a public road must be a communication for carrying
on business between two public places, which the road in question
was not, being only made use of for recreation, and the distance
by it between Glasgow and Carmyle being three miles greater than
by the ordinary road.
To this it was answered,
1. That it having been proved that the public bad enjoyed an
immemorial possession of the road far beyond the period of pre-
scription, antecedent to all interruption, the right must be held
in law to have been then in the public ; and consequently, in or-
der to deprive them of that right, there must be an effectual and
acquiesced in interruption of it for forty years ; whereas the in-
terruptions here were neither effectual nor acquiesced in, and
were of such a nature that they would not have been sufficient
even to prevent the acquisition of a right of way, and far less to
deprive the public of it when already acquired by possession be-
yond the memory of man, antecedent to all interruption ; and,
£. That the public might acquire a right to a road for the pur-
poses of health or recreation, but that the road in question was
also of use for purposes of business, and formed a communication
between intermediate points and roads along the banks of the
river from Glasgow to Carmyle.
The Conrt unanimously disallowed the exception.
Pursuers' 4utAerities.—Nti\8Qn, Jan. 27. 1623, (10880) ; Betbu&e *• Ogilv* 1C7U,
(10912); Nicholson, (11. 291.)
J. C. Wilsok, W. &— Macmillajt and G*a*t, W, &—AgtB*.
COURT OF SESSION. 919
t
T. Falconer and Others, Advocators. — More. No. 455.
J. Sheills and Company, Respondents. — Skene — Gillies.
Proces*— Advocation— Stat. 6. Geo. IV. c 120.— Held,— 1.— That an advocation
under § 40. of the Judicature Act of a cause in which an interlocutor allowing a
proof has been pronounced, is incompetent, under the Act of Sederunt following
on the Judicature Act, after the lapse of fifteen days from the date of the inter-
locutor j— and,— 2. That it was not ultra vires of the Court to impose this limit,
ation on the power of advocating, though given in. the statute without limita-
tion.
In a process at the instance of Sheills and Company, before July 10. 1827.
the Dean of Guild Court of Glasgow, for the purpose of obtaining „ ~ — ^
leave to convert certain premises belonging to them into a calender, Ld# cringle t ic.
and to erect a steam-engine, they were opposed by Falconer and B.
others, neighbouring proprietors, who alleged that the intended
alterations would create a nuisance injurious to their properties.
On the 2d of March 1826 the Dean of Guild pronounced an in-
terlocutor allowing Falconer and others a proof of their allega-
tions, to be concluded within six weeks. No steps were taken in
this proof; but on the 12th of April, the six weeks being almost
expired, Falconer and others presented a bill of advocation in
terms of the 40th section of the Judicature Act, which provides
that, in all questions depending in Inferior Courts of greater
value than £W> ' as soon as an order or interlocutor allowing a
4 proof has been pronounced/ * it shall be competent to either
4 of the parties who may conceive that the cause ought to be tried
' by Jury, to remove the process into the Court of Session by
* bill of advocation, which shall be passed at once without dis-
4 cussion, and without caution ;' and declares, that ' in case no
4 such bill of advocation shall be presented, and the parties shall
4 proceed to proof under the interlocutor of the Inferior Court,
' they shall be held to have waived their right of appeal to the
4 House of Lords against any judgment which may thereafter be
4 pronounced by the Court of Session, in so far as by such judg-
4 ment the several facts established by the proof shall be found
< and declared.1 This bill having been passed, and the letters
expede, it was contended by Sheills and Company, That the ad-
vocation was incompetent, in respect no bill had been intimated
in the Inferior Court within 15 days from the date of the inter-
locutor allowing a proof, agreeably to the provisions in the Acts
of Sederunt passed under authority of the Judicature Statute.
The provisions founded on were § 71. of the Act of Sederunt re-
lative jo the Court of Session, and § 3. parti, c. 18. of that re-
garding Burgh Courts. By the former it is declared, in reference <
3n2
920 CASES DECIDED IN THE
to advocations under § 40. of the Act of Parliament, * That if
« neither party shall intimate in the Inferior Court the passing
* of a bill of advocation within 15 free days after the interlocutor
' has been pronounced in the ordinary case, and 30 days in causes
4 before the Courts of Orkney and Shetland, the bill and passing
' thereof shall be held to fall, as if it had never been pre-
' sented, and the proof may effectually proceed in the Inferior
« Court.'1 And by the latter it is declared, in reference to the same
matter, that * it shall not be competent for either of the parties to
« take any proof (except one allowed to lie in retentis) until after
i the expiry of 15 free days in the ordinary case, and SO days
1 in cases before the Courts of Orkney and Shetland, in order to
' give time for an advocation in terms of the statute 6th Geo. IV.
4 c. 120. § 40 ; and unless the passing of a bill of advocation shall
* be duly intimated within the said periods of 15 and SO days re-
' spectively, the proof shall proceed ; provided always, that by
* agreement of parties, the proof may be taken without any such
' delay.' On these clauses it was contended by Sheills and Com-
pany, That an advocation under the 40th section of the Judicature
Act was incompetent, unless presented and passed, so that the
passing should be intimated within 15 days of the date of the inter-
locutor allowing a proofs and the case of M'Farlane, (ante, Vol. V.
No. 24.) decided by the First Division, was referred to in sup-
port of this construction. On the other hand, Falconer and others
maintained, That the object of the Acts of Sederunt was to pre-
vent the proof being commenced till the expiry of 15 days, to give
time for advocation ; but that although the proof might go on
if no bill was intimated within the 15 days, yet it did not limit
the period for advocating, provided the parties had not com-
menced leading their proof, which was the only limitation con-
tained in the Act of Parliament ; and further, that if the Acts of
Sederunt could bear an interpretation such as that put on them
by Sheills and Company, they were clearly incompetent, as the
Court had no power to limit, in point of time, a right of advocat-
ing conferred on the lieges by the statute without such limitation.
The Lord Ordinary, ' in respect of the decision of the First
4 Division in the case of M'Farlane v. the Duke of Montrose, and
< in respect of § 3. of the Act of Sederunt relative to the Burgh
* Courts,9 dismissed the advocation as incompetent. Against this
interlocutor Falconer and others reclaimed ; and the Second Divi-
sion, entertaining great doubts of the judgment in the case of
M'Farlane, ordered Cases for the opinion of the whole Court. But
the consulted Judges having returned an unanimous opinion, ' that
< not only from the terms of the Act of Sederunt l$th November
COURT OP SESSION. 9*1
•« 1825, but from the particular circumstances of this case, the
* said interlocutor is right/and^ ought to be adhered to/ the re-
claiming note of Falconer and others was refused accordingly.
W. Allester, — J. Thorburn, — Agents.
0
I
Heritors and Kirk-Session of Glassford, Advocators.—* No. 456*
Sir J. ConneU.
R. Ore, Respondent.-— «/. Miller.
Poor— Juritdiciion.— The heritors and kirk-session of a parish not having taken a
claim for relief into consideration, or given any deliverance thereon— Held,—
1 .-—That the Sheriff has jurisdiction to ordain them to meet and consider whether
the claimant is entitled to aliment, and that he is entitled to allow a proof of the
settlement of the pauper, in order to enable him to determine whether he will so
order them to meet. — 2.— That a meeting pending the discussion before the She*
riflT, at which the heritors and kirk-session approved of the conduct of the mi-
nister in verbally refusing relief, and resisting the pauper's application. to the
Sheriff, will not alter the case.— 3. — Question raised, but not decided, whether
an action by a third party, who had alimented a pauper, against the parish, is
competent before the Sheriff.
The respondent Orr, an operative weaver in the parish of July 10. 1837.
Glassford, received into his house to board an infant child of one 2
Torrance, whose wife had deserted him, and who was said to Ld. crimrleUe'
have a settlement in the parish. Shortly after this, Torrance hav- f.
ing died, Orr made repeated applications verbally to the minister
to have the child taken off his hands. These were either neglect-
ed, or, as the minister alleged, verbally refused by him. At last
Orr presented a written petition to the heritors and kirk-session ;
but no deliverance was given on this petition, nor any meet- •
ing held to take it into consideration. He then presented a pe-
. tition to the Sheriff Substitute of the Middle Ward of Lanark-
shire, praying him to ordain the heritors and kirk-session to take
the child off his hands, and relieve him of its support ; and fail-
ing their doing so, to find them liable to him in such a sum of ali-
ment as might be deemed reasonable ; or, at all events, to ordain
.them to meet and take the petition formerly presented to them,
and the case, into consideration.
In answer to this petition, the heritors and kirk-session, besides
alleging that Glassford was not the parish of Torrance's settle-
ment, and that the child had relations who were bound to main-
tain it, objected that the Sheriff had no jurisdiction in such mat-
ters; and, on his pronouncing an interlocutor allowing Orr. a
proof that the father of the child had a settlement in the pa-
rish, of Glassford at the time of his death, they gave in a re-
982 CASES DECIDED IN THE
claiming petition on the point of competency. On this petition
the Sheriff Substitute pronounced an interlocutor expressly sus-
taining hii jurisdiction ; and to this interlocutor the Sheriff De-
pute adhered. It afterwards appeared, that between the date of
the interlocutor of the Sheriff Substitute and that of the Sheriff
Depute, a meeting of the heritors and kirk-session had been held,
at which the minister stated that he had personally told Orr that
he was not entitled to be relieved of the child, and that Orr had
since raised an action before the Sheriff; whereupon they'ap-
* proved of the conduct of the minister and other managers of the
« poor in resisting Orr's application ;' but no intimation of such a
meeting having been held was made in the Sheriff Court ; and
the heritors and kirk-session, on the judgment of adherence by
the Sheriff Depute, brought the case info this Court by advoca-
tion, and produced an extract of the minutes of the above-men-
tioned meeting, for' the first time, with their reasons of advoca-
tion.
In support of their advocation, the heritors and kirk-session
contended, That the management of the poor was intrusted solely
to the heritors and kirk-session, who were subject to the control
of the Supreme Court alone, and that the Sheriff had no power
whatever to interfere in any such matters, as had been found m
the case of Richmond &c v. the Abbey Parish of Paisley, (ante,
Vol. I. No. 212);— and that, even supposing the Sheriff had ju-
risdiction to ordain the heritors and kirk-session to meet and take
the case into consideration, that did not authorize him to enter
into an investigation as to the pauper's settlement, which was in
no way necessary to enable him to exercise the jurisdiction of or-
daining them to meet, and was, by the aets of Parliament regard-
ing the poor, put as completely within the sole jurisdiction of the
heritors and kirk-session in the first instance, as the title of pau-
pers to be relieved, or the amount of relief to be given ; and, at
any rate, that the kirk-session had actually met and refused the
claim.
To this it was answered,
1. That the case of Richmond had reference only to the juris-
diction there attempted to be exercised by the Sheriff in review-
ing the judgment of the heritors and kirk-session on a claim for
• relief by a pauper, and expressly reserved the question o£ the
Sheriffs power to ordain heritors and kirk-sessions to meet and
take a case into consideration, so that it did not touch the present
case,, where the heritors and kirk-session had given no deliverance
on the petition for relief.
2. That although the Sheriff had no jurisdiction to review the
COURT OF SESSION. 9*8
judgments of the heritors and kirk-session, or to decide on the
claim by a pauper himself in the first instance, he undoubtedly
had power, by the proclamations and acts of Parliament, to ordain
heritors and kirk-sessions to meet, when they refused or neglect-
ed so to do.
8. That the Sheriff had also been found, by various decisions,
to have jurisdiction to entertain questions like the present, which
was not a demand for aliment by a pauper, but a claim by a
third party to be relieved of the burden of maintaining a child
which he was not bound to support, and so resolved into a
question of patrimonial interest, which was equally competent
before the Sheriff as an action against a father or a son by a third
party who had supported his indigent child or parent, although
a direct action for aliment between the parent and child would
.not be competent.
4. That, supposing the Sheriff could only entertain the case to
the effect of ordaining the heritors and kirk-sesaion to meet, still
it was necessary to ascertain whether the pauper had a settle-
ment in the parish, in order to determine whether or not he
should so ordain them to meet ; and,
5. That the question could not be affected by the alleged
meeting of the heritors and kirk-session, which was a proceed-
ing pendente lite; and besides, the meeting did not take the
petition into consideration, but approved of the conduct of the
minister, who had refused to call a meeting to consider it, and
had resisted the application to the Sheriff.
The Lord Ordinary, ' in respect that the petition in this case
(* to the Sheriff was not at the instance of the pauper himself, but
. ' at the instance of the respondent, who, it is admitted on all
' bands, was not bound to aliment him, and was brought against
« the parish of Glassford for relief .of the burden of maintaining
' the child, and that the jurisdiction of the Sheriff has always
' been sustained in such cases of relief, and was acknowledged by
* the Court in the case of the Abbey Parish of Paisley, and also
( in respect that the Sheriff has jurisdiction to order the kirk-
* session to meet to consider whether a pauper is entitled to ali-
c ment or not, and consequently may take such steps as will en-
* able him to judge whether he should order or not the kirk-
* session to meet for that purpose ; and in respect that in this in-
' stance the Sheriff had done no more than to take such measures
c when the advocation was brought,1 remitted simpliciter, with
expenses.
The heritors and kirk-session having reclaimed, the Court ad-
hered to his Lordship's interlocutor, 4 in so far as it remits the
98* CASES DECIDED. IN THE
* cause- simpliciter to the Sheriff, ' in respect that the Sheriff has
" jurisdiction to order the kirk-session to meet to consider whe-
" ther a pauper is entitled to aliment or not/ and finds expenses
' due;' but being equally divided as to the other ground on
which the interlocutor Was founded, they at the same time re-
called, quoad ultra, ' the fationes decidendi of that interlocutor as
* unnecessary ?
Lord Pitmilly. — I doubt the correctness of the interlocutor. The
petition to the Sheriff contains two different prayers. The one— to
have the heritors and kirk-session ordained to meet — I think wts
competent ; but, as to the other, I conceive he had no jurisdiction ;
and even as to the first, he has gone further than ordaining the he-
ritors and kirk-session to meet. Besides, they have now dismissed
the application made to them by the respondent ; and I would there-
fore propose to find that the petition to the Sheriff was competent,
so far as it prayed him to ordain the heritors and kirk-session to
meet ; but in respect that they have now met and decided the case,
I would advocate, and assoilzie them, reserving to the respondent
to apply to the Supreme Court.
Lord Allow ay. — I agree entirely with Lord Pitmilly. After the
meeting of the heritors and kirk-session, the Sheriff should have
found the action incompetent. In certain competitions, as between
two parishes, it may be necessary for the Sheriff to decide ; but this
is not one of them.
Lord Glenlek. — There is no analogy between this case and that of
Paisley. All that was decided there was, that the Sheriff had no
power of review when the heritors and kirk-session had pronounced
a judgment on an application for relief. Here the heritors and lark-
session refused to take the petition into consideration, and they could
not alter the state* of matters by taking it up, after considerable
procedure before the Sheriff. As to the Question whether a party
claiming relief is in a state of pauperism, and the like, they are
all intended to be left to the heritors and kirk-session; but the
case is quite different where they do not deny that he must be
supported, but say that be has relations, or that there are other pa-
rishes bound to support him. In such a case, I think the Sheriff has
jurisdiction to entertain the question whether the pariah on ^whoat
the demand is made is liable to Bupport the pauper, he being entitled
to support ; but it is scarcely necessary to decide that question here,
as it is enough to support the jurisdiction that the heritors and kirk-
session neglected to meet ; and the Sheriff is entitled to take such
steps as will enable him to decide whether he shall ordain them to
do so.
Lord Jusvice-Clkrk. — t have no conception that this clergyman
stating to a meeting that he had privately disposed of the case, and
their approving oi his conduct, could jnake»any change on the stale el
COURT OF SESSION. 926
the process, as tbey just ratified his proceedings in opposing the appli-
cation to the Sheriff. On the other point I take the same view with
Lord Glenlee, though perhaps it is unnecessary to decide it. If the
Sheriff had fixed the rate of aliment to be paid in future, this Court
would not bare allowed it ; but when the demand is for relief of ali-
ment advanced, that is clearly a question of patrimonial right ; and I
can see no difference between the present case and that of Alyth. '
As to the Paisley case, it was totally different, and has no reference
to this.
After hearing Lords Justice- Clerk and Glenlee, Lords Pitmilly and
Alloway concurred in the modified adherence to the Lord Ordinary's
interlocutor above mentioned.
Advocator? Authority. — Richmond r. Abbey Parish of Paisley, (ante, I. 212.) •
Respondent' t Authorities. — Dicta of the Court in Richmond v. Abbey Parish of
Paisley, Nov. 29. 1821, (Dunlopon Poor Laws, No. 5. App.); Prod. July 31.
1694 ; Mor. Diet, voce Poor, Nos. 8, 9, 14, 15, 16, 19, and No. 1. App.
G. Mill, S. S. C. — Scott and Boog, W. S. — Agents.
Mcbdo ATKenzie, Advocator. — Buchanan. No. 457.
A. Taylor, Respondent.—^. Wood.
Process— Record—- 6. Geo. IV. c. 120.— Reclaiming note dismissed, in respect of
the record not being attached to it.
In an advocation by M'Kenzie of an action against him at the July 10. 1827.
instance of Taylor, the Lord Ordinary having pronounced an in- 2d Division*,
terlocutor on a closed record unfavourable to ATKenzie on an Lord Medwyn.
objection to Taylor's title to pursue, he presented a reclaiming F.
note, to which was attached an appendix containing two papers
called ' Corrected addition to reasons of advocation/ and ' Cor-
' rected answers to the corrected addition/ &c. — but not having
the whole closed record. On the case being put out for advising,
the Court adverted to the defect of the note in not having the
record attached, and delayed for a day or two to consider whe-
ther they could competently take up the case at all. In the
mean time ATKenzie printed and boxed a new appendix contain-
ing the proceedings in the Inferior Court, and the rest of the
record in this Court, and he pleaded that what was originally
attached to the reclaiming note was the only part of the record
having reference to the title to pursue, which was the sole point
decided in the interlocutor submitted to review ; but the Court,
holding that unless reclaiming notes were presented with the
whole record, as prepared and closed, attached in terms of the
Act of Parliament, they could not entertain it, dismissed it as
incompetent.
H. Macquebn, W. S. — J. Macdowell, W. S— Agents.
9*6 CASES DECIDED IN THE
No. 458* J. Ker, Advocator.— Afa/ri^r.
J. Baird, Respondent. — Macallan*
Process— Summons,— A party having brought an action concluding for delivery of
a bill bearing to be indorsed by him, but which he alleged he had given to the
defender without value for a special purpose ; and having thereafter averred that
his name was forged, but there being no such allegation in his summons, a proof
of it was refused.
«
July 10. 1827. Ker raised an action before the Sheriff of Peebles against
2i> Division. Baird, concluding for delivery of three bills bearing to be in-
dorsed by Ker, but which he alleged he had handed over to
Baird without receiving any value, for the purpose of showing
them to some person whom he expected to cash them. There
was no allegation in the summons that the indorsations were not
truly the signatures of Ker ; but in the course of the process he
alleged that they were forgeries, and offered to prove this allega-
tion by the evidence of persons acquainted with his manner of
writing.
The Sheriff having refused to allow this proof, and having
found that the allegation of the bills having been given to Baird
without value could only be proved by his writ or oath, and hav-
ing appointed Ker to give in a minute to that effect, if he meant
to make a reference, he brought an advocation, in which the Lord
Ordinary remitted simpliciter, and the Court adhered.
J. Morison, S. S. C. — J. Dumbreck, W. SL — Agent*.
No. 459- T. Miller, Suspender.— Sol-Gen* Hope—A. Wood.
R. Wilson, Charger. — Whigham.
Arrestment. — Held that the salary of an extractor of the Court of Session is ar-
restable.
July u. 1827. Wilson, a creditor of Miller, one of the extractors of the Court
1st Division. °f Session, having executed an arrestment of the salary due to
Bill-Chamber, him in the hands of the collector of the fee-fund, Miller pre-
Lord Newton, sented a bill for letters of loosing arrestment, which the Loni
Da Ordinary refused, ' in respect he sees no reason to think that the
( salaries of public officers, such as the complainers, are not ar-
* restable.' Miller then reclaimed, and contended, That it was a
general rule, that where a fund was allowed to a public officer
for his support in the performance of his public duty, it was not
arrestable; that on this principle the salaries of die Supreme
Judges could not be arrested ; that, besides, the fund waa properly
COURT OF SESSION. 927
of an alimentary nature, being given not to maintain a certain
rank or dignity, but purely for his support.
To this it was answered. That Miller had a salary, of £150 per
annum, and besides, as extractor, was entitled to Is. on each sheet,
which produced him a further revenue of about i?200 ; that the
arrestment only attached a quarter's salary, and that it was equally
as much arrestable as the stipend of a minister, or the salary of
the keeper of the Parliament, or of a macer, all of which had
been found to be arrestable.
The Court unanimously adhered.
Lord President,— According to the principle contended for by the
suspender, even his person would be free from arrest, because be
would thereby be effectually prevented from executing his office.
But that is utterly untenable ; and as it has been settled that a. mi-
nister's stipend may be arrested, there appears to 'be no ground here
for any distinction.
J. Macdonkll, W.S*— J. Macandrrw, S;S. C— Agents.
Margaret Anderson and Others, Pursuers. — Skene— No. 460.
jD. Macfarlane.
J. Boyd, Defender. — More.
»
•Fretting the Tenors— Circumstances in which a proving of the tenor of a deed was
allowed to proceed, although there were no adminicles expressive of its precise
terms.
Boyd, as trustee on the sequestrated estate of James Anderson, July 11. 1827*
merchant in Paisley, having brought a reduction, on the act 1621, i8t"di7i7ioii.
of a disposition and sasine executed by him in favour of his H.
brothers and sisters, they alleged in defence that the deed had
been granted by the bankrupt in implement of a trust-deed of
settlement executed by their father in September 1807, which
the bankrupt had, along with his mother, destroyed after the
death of their father ; and that he had granted a letter of obli-
gation, the original of which had been lost, but of which a copy
had been preserved, binding himself to grant the disposition in,
question. The Lord Ordinary (Alloway) having found that it
was necessary to prove the tenor of the father's trust-deed, they
brought an action for that purpose, both as to the trust-dis-
position and letter of obligation. In support of this action they
stated, that they would prove the execution of the trust-deed,
and a relative codicil by the writer, and one of the instrument-
ary witnesses who was alive ; — that both the deed itself and the
scroll, with the exception of the part relating to the descrip-
tion of the property, had been delivered to their father ;— that wjiep
928 CASES DECIDED IN THE
he was on deathbed, he had given the deed to a confidential per-
son to peruse, who did so, and afterwards delivered it to him; — that
on the 4th of April the bankrupt, who was the eldest son, and to
whom it was prejudicial, had gone from Paisley to Edinburgh
with the deed, and there caused a memorial to be prepared in
name of his father, on which he consulted Mr. Clerk, now Lord
Eldin, as to whether it was competent for the father to destroy the
deed ; — that, on Mr. Clerk having advised the father rather to
alter than to destroy the deed, the bankrupt returned to Paisley,
but that he did not arrive till after his father's death, which happen-
ed on the morning of the 6th of April 1816 ; — that he and his mo-
ther on the same day burnt the deed ; — that on the 16th of the same
month he granted an obligation to execute a new deed in terms
of it, which had fallen aside, .but of which the scroll was pre-
served; and that accordingly he had executed the deed under
reduction on the 18th of March 1819*
In defence Boyd the trustee pleaded, That as there were no
adminicles founded on, and as the deed of the father was of a
testamentary nature, and could lawfully be destroyed by him at
any time, the presumption was that he had done so, and it was
neither competent nor possible to prove its tenor.
The Court, before answer, appointed Andersons c to give in a
* condescendence of the adminicles founded on by them, and to pro-
' duce the same.1 These adminicles consisted of a part of the scroll
of the deed, which contained only the description of the property —
of an excerpt from the books of the writer of the deed, containing
the charge for framing it, and stating that it was ' in favour of
* your wife and family '—of the discharged account, vhich was in
the same terms — of the opinion of Lord Eldin, in which it was also
mentioned that it was ' in favour of his wife and children1— of a
copy of the letter of obligation granted subsequent to the de-
struction of the deed, containing what, c it is supposed,' was the
import of the deed— and, lastly, of the deed under reduction,
which, it was alleged, was in tends of the original deed.
The Court, after ordering minutes by the parties, * stating the
' cases and authorities upon which they found their plea, and,
* before answer, having allowed a proof to be taken to lie in-re-
* tentis before Lord Meadowbank, in place of Lord Eldin who
' was to be examined as a witness, and allowed, also before an-
' swer, the bankrupt and his mother to be examined, their Lord-
* ships appointed mutual memorials upon the nature and rele-
' vancy of the present action/
Thereafter, on advising the memorials, and the trustee having
admitted that the deed once existed, their Lordships remitted the
COURT OF SESSION. 929
*
following issue to the Jury Court : — ' Whether the said deed of
( settlement, and any codicils added thereto, were destroyed by
* the order or with the knowledge of the said Hugh Anderson;
* or whether they were accidentally lost, or fraudulently de-
' stroyed, without his authority or knowledge, to the loss and in-
' jury of the pursuers ?*
The Jury having found * that the deed of settlement was in
' existence after the death of Hugh Anderson, and that it was
' destroyed without his directions or authority,' the Court * al-
* lowed the pursuers to proceed with their action of proviqg the
c tenor of said deed/ and authorized the proof, which had been
taken aftd sealed up, to be opened.*
Pursuers* Authorities.— 4. Stair, 42. 3. 6. 7 ; 4. Ersk. 1. 54 ; 4. Bank. 29. 2 ; £. of
March, July 19. 1743, (15825); A. ». B. Nov. 21. 1749, (15823); Kennoway,
Feb. 18. 1752, (12438) ; Niinmo, July 26. 1771, (15825.)
Defender's Authorities.— 4. Ersk. 1. 54 ; Campbell, June 20. 1747, (15821.)
C. J. F. Orr, W. S.— W. and A. G. Ellis, W. S— Agents.
J. Miller, Petitioner.— Alison. No. 461.
His Creditors, Respondents. — Ivory.
Process— •Seqwstratior*--Discharge.— Where there is opposition to a petition for
approval of composition and discharge, the Court will not remit it to be deter-
mined by the Lord Ordinary on the Bills during vacation.
Miller, a sequestrated bankrupt, having given in a petition July ll. 1827.
for approval of a composition, and for discharge, it was intimated sP Division.
by certain of his creditors that they meant to oppose it, and they
accordingly took the petition out to see. This being near the end
of the Session, and both parties being desirous to have the ob-
jections discussed before the Lord Ordinary on the Bills during
vacation, a motion was made by Miller to have the petition re-
mitted for that purpose to his Lordship, with power to decide on
the application, and a minute was given in by the opposing cre-
ditors consenting thereto ; but the Court refused the motion.
Their Lordship* held, that unless the opposition was withdrawn, they
could not remit a petition for approval of composition and discharge
to the Lord Ordinary during vacation.
W. N. Grant, S.S.C. — Gibson-Craigs and Wardlaw, W. S. —
Agents.
• This interlocutor was pronounced on the 9th of December 1826.
980 CASES DECIDED IN THE
t
No. 462. W. Mills and Others, Pursuers. — Jeffrey — Forsyth — Cockbztm.
Albion Insurance Company and J. Hamilton, Defender*. —
Scl.-Gen. Hope — Jardine.
Proof— Insurance— Principal and Agent. — An insurance having been effected en
a vessel, and thereafter renewed by a renewal receipt bearing reference to a po-
licy by a special number ; but no policy having been delivered, contrary to the
usage of insurance offices in the place to send the policies to the menred— Held,
in an action for delivery of a policy in the terms alleged by the insured to have
been those agreed on, and for recovery of loss, that it was competent to prove
the nature of the risk insured, contrary to the terms of the policy, by parole and
circumstantial evidence ; an*d that, in an action against a foreign insurance com-
pany and their agent in this country, the pursuers were entitled to a verdict ge-
nerally against both the company and the agent, no evidence having been Jed by
. them, iu a trial before a Jury, of the agent having exceeded his powers.
July 11. 1887* The Robert Bruce steam-vessel, plying between Greenock and
8* Division. Liverpool, was, in the year 1819, insured against fire bj the own-
Jury Court, era, Mills and seven others, each individually for his own share,
B. with the Albion Fire and Life Insurance Company of London, at
their office in Glasgow, where the defender Hamilton was their
agent. No policy was delivered, and next year the owners gave an
order for a joint insurance of the whole vessel, and received a me-
morandum or receipt stating that an insurance had been effect-
ed, without specifying the extent of the risk, or containing any
restriction, and bearing that a policy would be forthwith prepared
in London, and delivered to the insured on the third Monday of
the ensuing month. This policy was in like manner never deli-
vered ; and, on the expiry of one year, a renewal was effected for
another year, the renewal receipt delivered to Mills and others be-
ing dated from the office in London, and bearing reference to die
policy by its particular number. The vessel having beea de-
stroyed by fire while at sea, they made a demand on the office
for payment of the loss ; but this was resisted, on the grouad
that, agreeably to the provisions of the 6th Gea I. c 18* (which,
it was alleged, prevented all English companies, except two offi-
ces, from taking fire risks on vessels, unless while in part, or on
rivers, canals, &c.) there was inserted in the policy a clause sus-
pending the insurance while the vessel was at sea. Mills and others
thereupon raised an action against the Company and Hamilton,
their agent at Glasgow, before the Judge-Admiral, concluding
to have them ordained to deliver a. policy without any restricting
clause, and thereafter, or on failure, to make payment of the loss.
The Judge- Admiral having assoilzied the defenders, and, at the
same time, found it unnecessary to decide a defence founded on
the 6th Geo. I., Mills and the other owfters brooght a reduction,
COUBT OF SESSION. B81
in support of which they offered to prove, by circumstances as
set forth in the report of the case ante, Vol. IV. No. 860, (which
see,) that the Insurance Company had agreed by Hamilton to in-
sure the vessel generally, both in port and at sea, without any
restriction.
The Court, after some discussion as to the relevancy of these
Averments, remitted the cause to the Jury Court, where the fol-
owiflg issue was sent to trial :— Mt being admitted that on the
27th or 28th days of August 1821, the steam-vessel called the
« Robert Bruce,' the property of the pursuers, was destroyed by
fire while at sea, on her voyage betwixt Liverpool and Dublin:
Whether the defenders promised and agreed to insure the pur-
suers to the extent of J?3000, or about that sum, from all loss
and damage which might be caused by fire to the said vessel
while at sea as aforesaid ; and whether the defenders' have failed
to perform the said promise and agreement, to the loss and da-
mage of the pursuers ?'
At the trial of this issue, which came on before the Lord Chief
Commissioner at Glasgow, the pursuers, in support of their
case, tendered in evidence, inter alia, the insurance certificates
or memoranda delivered in J819 on their individual insurances
to the eight owners of the vessel, of whom only six were now
owners and parties to this action ;— certain letters which had
passed between Hamilton, the agent at Glasgow, and the secre-
tary of the office at London, on occasion of these insurances in
1819 having been effected ;— and parole proof as to the import
of certain conversations between the pursuer Mills and the clerk
of Hamilton at effecting the said insurance and renewals— as
to the rate of the premium stipulated being that usually given
for sea risks— as to the practice of the insurance offices at Glas-
gow to send the policies to the insured — and as to the policies
not having been delivered in the present case.
To this evidence the defenders objected, as not legally admis-
sible to contradict the terms of a written policy ; but the Lord
Chief Commissioner allowed it to go to the Jury.
The defenders then insisted that even if the alleged promise
and agreement were legally, proved, it was void under the 6th
Geo. I. c. 18, and that the Jury should be directed accordingly
to find a verdict for them; but the Lord Chief Commissioner
directed the Jury, if they were satisfied with the evidence, to find
for the pursuers. And the defenders further insisted that if a
verdict were to be returned against them, the Jury should not be
directed to return a general verdict against all the defenders, but
either against Jthe Albion Company the principals, or Hamilton
988 CASES DECIDED IN THE
the agent ; but the Lord Chief Commissioner directed the Jury,
if their verdict should lie in favour of the pursuers, to find against
all the defenders generally. Against these directions the defend-
ers excepted ; and a verdict having been ' returned by the* Jury
in favour of the pursuers, and against the defenders generally;
the latter took a'Bill of Exceptions, in support of which they now
argued,
1. As to the evidence, — That the insurance, under which the
pursuers sought to recover, being effected by a renewal receipt
issued from the office in London, bearing reference to a pohcy by
number, which policy contained an exception of sea risk, and
this receipt being accepted by the insured, completed the con-
tract, in terms of the written policy so referred to, and so brought
the case within the general rule of the law of evidence, that
where a contract is reduced to writing, no evidence can be re-
ceived of the agreement but the written instrument, except to the
effect of explaining ambiguous expressions— correcting clerical
blunders — establishing subsequent agreements to depart from the
contract — or making out an action of damages, by proving fraud
or deception, within hone of which. exceptions this case fell ; and
in regard to the certificates and correspondence. relative to the in-s
dividual insurances in 1819, that that was a different contract alto-
gether, the circumstances attending which could not be evidence
in regard to the contract in 1820, and renewal in 1821.
2. That the statute 6th' Geo. I. c. 18, declared all insurances
against sea risks, by any companies except the two monopolist
offices, void and null ; apd,
3. That the defenders were, entitled to a direction that the
verdict should be either against the company or against tbeagent,
because* if the agent had exceeded his powers, the company would
not be liable, but only the agent ; whereas, if the agreement was
within his powers so as to bind the company, then tie, as agent,
could not be liable. -
On the other hand, it was argued for- the pursuers, •
1. That it was only where a party had put his hand to a writ-
ten instrument, or had accepted it as the measure of the agree-
ment, that parole and extraneous evidence was incompetent to
prove the agreement ; but that the •• present action being for de-
livery of a policy in terms of an agreement; &rid no policy having
been ? received by the pursuers, but merely a receipt bearing re-
ference to a policy which they had hot seen, and which they could
not be held to havq accepted without a knowledge of its tenor,
they were entitled, to prove the terms pf the agreement by parole
proof and otherwise,— -both on the ground that they had not ac-
COURT OP SESSION. 089
cepted the policy as the measure of their right, and that the receipt
bearing reference to a policy which they had not seen, but which
contained a clause contrary to their agreement, was in fraud of
that agreement ; and in reference to the certificates delivered on
the insurance in 1819, and correspondence relative thereto, that
the insurance in 1819 having been the original contract, of which
the subsequent insurances were in reality only renewals, the cir-
cumstances which then took place were legal evidence to prove
the nature of the contract.
2. That the statute 6th Geo. I. was an English statute, and
could have no effect in a question with Scotch parties, and in re-
gard to insurances effected in Scotland ; and that fire at sea was
not strictly speaking a sea risk, which alone fell within the mono*
poly of the two favoured companies ; but besides, that the question
had been reserved in the Court of Admiralty, and could not com-
petently have entered into the consideration of the Jury under,
the issue sent to trial ; and,
3. T hat, in the circumstances of the case, the defender Hamil-
ton being the agent of a foreign company, and no evidence hav-
ing been led by the defenders to distinguish their cases, the Judge
had properly refused to direct a separate verdict.
The Court unanimously disallowed the bill.
Lord Justick-Cx.erk«— I was somewhat moved by the defenders' argu-
ment, till I looked back to the terms of the original summons in the
Court of Admiralty, which libels that the parties had conditioned
for a policy in certain terms, and concludes that the defenders should
be ordained to furnish a policy insuring against risk of fire any
where, and at any time. Such being the conclusions of the action,
and the issue being whether the defenders promised and agreed
to insure in such terms, and failed, it appears to me clear that
this case is quite apart from the ordinary case of an action for, re*
covery under a policy of insurance. I cannot go along with an
argument used from the Bar, that this issue is just the common
issue for trying an -action oa a policy ; on the contrary, I think that
it would have been the proper issue, had no policy been prepared at
all, and was the proper issue for trying this case. It is impossible
to dispute the general principles maintained by the defenders as to
the incompetency of controlling, by parole and circumstantial evi-
dence, agreements reduced into writing by the parties ; but it is in
no respect contrary to that general principle that the objections
were repelled in the special circumstances of this case ; and I am of
opinion that they were properly repelled. As to the alleged ille-
gality of the insurance under the 6th Geo. I., that is not bujus loci :
it may raise a question of law afterwards, but we have nothing to
do with it here. And in regard to the last exception, considering
vol.. v. 8 o
034 CASES DECIDED IN THE
that no evidence was led by the company to shew that the agent
exceeded his powers, the Judge could do nothing bnt leere die
to the Jury, without any special direction, as there were no
for making any distipctipn. •
Lord Glrnlee concurred.
Lord Pitmillt—- If there had been a written policy detiwared and
finally accepted, we could have looked to nothing else ; and to such
a case the authorities cited by the defenders apply. But that it not
the nature of this case. It is admitted that there was a bargain to get
a policy,. w|uych was not delivered ; and the question is, what were
the terms of the bargain ?— whether it was to include or exclude the
risk at sea ? . The document constituting the bargain is the renewal
receipt ; but as the policy referred to in it was not delivered, we
must go back to the memorandum of the order in 1819, which
originated the transaction. The issue could not be otherwise than
whether the defenders agreed to deliver a policy in certain terms ;
and I cannot entertain a doubt but that the evidence tendered on
the trial was admissible, as otherwise no claim of this nature could
ever be maintained. As to the evidence in regard to whether by
practice the insurers were bound to send the pofiey, I am dear that
it was admissible ; because, if it had been incumbent on the insured
to send for it, their neglecting so to do might have put them %i the
same situation as if they had received k, and thaw were
, entitled to prove that the contrary was the rule in practice. In
gard to the other exceptions, I agree with your Lordships that the
second is not hujus loci ; and as to the third, it is enough that the
defenders led no evidence as to the agent's powers, and consequently
the Judge could not discriminate between them.
Lord Alloway.— I entirely concur on the same grounds.
Pursuers' Authorities. — \. Marshall, 349; Fdl, p. 58-9, and Cases there cited;
].PhUnps,6924.
Defender*' Authorities.— T*iU 9d e*it p. 390, ana Cases there anas ; Cases m
Murray's Reports, Vol. Ih p. 409, and Vol, U|. pp. 409, 439; Dictum of Lord
Chancellor Eldon ih Miller, July 30. 1822, (Shaw's Appeals, 308,) and in Hughes
and Hamilton v, Gordon, (1. Bligh, 287. and 311); 1. Phillips, 6th edit. 529,
530-6-8, 554-5, and Cases there cited; Woolham, (7. Vesejr, 911); Wests*,
(1. Taunt. US) ; 1. Marshall, (edit. 1883,) 990, 349, and Cases there.
_ • . *
D. Fisher, S. S. C. — R. Rutherford, — Agents.
COURT OF SESSION. #»
Sir J. Hamilton Dalrymple and Others, Suspenders. — No. 463.
D. qfF. Moncreiff—Cockbum.
W. B. Callander and Rev. W. Fisher, Respondents. —
SoL-Gen. Hope — Skene.
Interdict — The Lord Ordinary having passed a bill of suspen- July n. 1827.
sion, but refused interdict as to the excambion of a glebe, the „ ^
n A • - . . . _. & ' 2o Division.
Court altered, and granted interdict. Biiuchamber.
, -_ Lonf Newton.
JE. Macbrak, W. & — A. Dallas, W. & — Agents* B.
Macxill Maxwell, Pursuer. — D. of F. Moncreiff—Cockburn No. 464.
— Maitland.
Duke of Queensberry's Executors, Defenders. — Jeffrey —
Murray.
Landlord ami Tenant— Warrandice.— -A tack having been granted to the tenant,
4 his heirs, assignees, and subtenants,' with warrandice to him and * his foresaids ;'
and the tenant having subset the farm with absolute warrandice, but without any
assignation to the warrandice in the principal lease — Held, on the principal lease
having been reduced, as ultra vires of the landlord, that the subtenant was en-
titled to bring an action of damages against the landlord under the warrandice.
The late Duke of Queensberry, on the 4th February 1807, let July u. 1827.
the lands of Inglistone to William Lorimer, * his heirs, assignees, 2d DmMoir
' and subtenants*' with absolute warrandice ( to the said William Ld. cringietie.
' Lorimer add his foresaids.1 In 1811 Lorimer subset the farm to B.
the pursuer Maxwell, ' with' and under the reservations, powers,
' and faculties specified and contairicd in the original lease/ and
with absolute warrandice on his own part ; but there was no as-
signment of the warrandice contained in the principal lease. The
original lease having been reduced, as contrary to the entail of
the estate of Queefcsberty, of which the lands formed part, in an
action to winch Lorimer alone was called, Maxwell at once gave
up the possession, although there was no decree personally against
him, and he thereupon raised an action of damages both against
the principal tacksman Lorimer and the Executors of the Duke
of Queensberry, founding on the warrandice in his subtack and
the original lease.
By the Executors a preliminary defence was pleaded, That
although they might be called by Lorimer in an action of relief
under the clause of warrandice in the principal tack, yet, as they
were not parties to the subtack, they could not be made directly
liable to Maxwell the subtenant, with whom they had not con-
tracted, and who had not obtained an assignment of the war-
randice in the original tack.
986 CASES DECIDED IN THE
To this it was answered for Maxwell, Thai as the lease was
granted not only to Lorimer and his heirs, but also to * subten-
« ants,1 the Executors, as representing the landlord, were bound
to implement the warrandice to him as subtenant, in the same
way as to the principal tenant himself, the more especially as the
warrandice was in favour of Lorimer * and his foresaids,* vis.
€ his heirs, assignees, and subtenants,1 whereby the landlord was
directly bound in warrandice to the subtenant, without there being
an express assignation, which was necessarily implied where the
right to subset is granted by the lease.
The Lord Ordinary repelled the defence, stating in a note, —
* The Lord Ordinary considers that the executors are directly
* liable to the pursuer. The lease was granted to William Lo-
1 rimer, his heirs, assignees, and subtenants* The true import of
' this is, that the landlord gave power to his tenant to name a
( subtenant ; that when a subtenant was named, the landlord
' granted the lease to him, and bound himself to warrant that
* sublease to him at all hands. The lease was granted as much
' to a subtenant as to the principal tacksman ; and of course no
* assignation to the clause of warrandice was necessary, because
' the principal lease warranted the sublease the moment that it
' existed.1 The Executors reclaimed against his Lordship** inter-
locutor ; and the Court being 'equally divided, after allowing the
case to stand over for reconsideration, required the opinion of
the other Judges, all of whom, with the exception of Lords Med-
wyn and Newton, concurred in the following opinion : — ' We are
' of opinion that the interlocutor of the Lord Ordinary ought to
* be adhered to. Cases may perhaps be figured, in which, from
'special circumstances, a subtenant would not hare a direct claim
4 against his landlord. But in all cases such as this, where the
' tack is expressly given to the principal tenant, his heirs, aasig-
' nees, and subtenants, and where the warrandice is granted to
' the principal tenant and his foresaids, we are of opinion that the
4 subtenant acquires every right competent to the principal, and
' can sue his landlord accordingly.1 In conformity with this opi-
nion, the reclaiming note for the Executors was refused.
Loans Medwyn and Newton gare a full opinion, of which the
following is the general result :— ,' We are of opinion that the Duke
* of Queensberry not having been a party to the contract by which
< the relation of subtenant was constituted, the subtenant has bo
' direct action against the landlord or his representatives, but can
' only claim damages from the principal tenant with whom be has
' contracted, who again will be entitled to claim damages Iron the
' landlord in virtue of the lease granted to him.'
COURT OF SESSION. 537
Lords Justice-Clerk and Pitmilly entertained a view of the cane
similar to that of Lords Medwyn and Newton ; while the opinion
of Lords Gmenleb and Alloway was the same with that of the
majority of the consulted Judges*
Pursuer1 $ AutKoriUe* — 1. Bell on Leases, 470; 2. St. 9. S3; Downie, Jan. 31.
1815, (F. C.)
F. and J. Brodie, W. S. — Lamont and Newton, W. S, — Agents.
J. Faiklie, FurmeT.—Ffdlerton. No. 465.
Sir James Fergusson and Others, Defenders. —
D. qfF. Moncreiff— Walker.
JBntaiL—A party having, for the purpose of creating a freehold qualification,
granted a feu-right of certain lands on which the dispone* was infeft, and hav-
ing also disponed the superiority ; and having thereafter executed an entail of his
estates, including the lands in question, which was duly recorded, and, after his
death, the disponee having executed a disposition of the lands in favour of the
heirs called in the entail, and under the same conditions, &c. as were contained
in the entail, setting forth that he (the disponee) held the lands merely in trust ;
but this disposition not having been recorded— Held— 1.— That as the deed exe-
cuted by the disponee had not been recorded, it could not prevent a creditor
from proceeding with diligence ; and question raised, but not decided, Which of
the two deeds was the original entail, the recording whereof was necessary to
secure the estate against creditors ?
The late Sir Adam Fergusson held the lands of Drummellan July 11. 1W7.
in fee-simple. In 1799, for the purpose of creating a freehold 2d d
qualification, he granted a feu-right of the lands, ex facie absolute, Ld.Mackenxie.
to his brother Lord Hermand, and his heirs and assignees whom- p.
soever, on which Lord Hermand was infeft. Sir Adam then
conveyed the superiority to his nephew Sir James Fergusson,
the present defender, and the heirs-male of his body, whom fail-
ing, to his own heirs and assignees ; but he neglected to obtain a
reconveyance of the dominium utile from Lord Hermand. In
1807 Sir Adam, overlooking the circumstance that he was now
divested of the lands of Drummellan, executed an entail of his
estates, including these lands, as if they had been still feudally
vested in his person, in favour of himself and the heirs of his own
body, whom failing, of Sir James, and a certain series of substi-
tutes. This entail contained the usual prohibitions, in particular
against contracting debt, alienating any part of the entailed lands,
or holding them under any other title than the entail, fenced
with irritant and resolutive clauses ; and it was duly recorded in
the Register of Tailzies.
Sir Adam died in 1818, and was succeeded by his nephew, the
defender^ Sir James, who was served heir of entail in spe-
cial to all the lands contained in the entail, except Drummellan,
988 CASES DECIDED IN THE
as to which he made up no titles till 1822* when a conveyance
was obtained from Lord Hermand, setting forth that the lands
had been held by his Lordship in trust for Sir Adam, and that
it was incumbent on him, in implement of the trust, to convey the
lands to Sir James, and the heirs called by the deed of entail ex-
ecuted by Sir Adam, and .under all the conditions, limitations,
&c. contained in that entail, and accordingly disponing the lands
to the heirs under the several prohibitions, which were copied
verbatim from that deed. On this disposition Sir James was in-
feft, but it never was recorded in the Register of Tailzies.
In these circumstances, the pursuer Fairlie, a creditor of Sir
James, raised an action against him and the other heirs of en-
tail, concluding to have it declared, 1. That as the disposition by
Lord Hermand had not been recorded, it was ineffectual against
him, an onerous creditor, to prevent him from attaching the
lands by diligence ; 2. That the lands were liable for Sir James's
debts, in respect of his possession as heir apparent to Sir Adam
'under his original titles in fee-simple; and, 8. That the lands
were liable to be attached by adjudication or other legal diligence
At the instance of the pursuer ; and that such adjudications as
might be led by him would be valid and effectual burdens on the
lands. The Lord Ordinary having assoilzied the defenders,
Fairlie reclaimed, and the Court appointed a hearing in presence.
The only question discussed at the Bar was, whether the en-
tail executed by Sir Adam Fergusson, 6r that of Lord Hermand,
was the original entail of the lands of Drummellan, which it was
necessary to produce and record in terms of the act 1685, In
support of the position that Lord Hermand's deed was the true
entail, it was argued by the pursuer,
1. That the true entail must necessarily be the deed which im-
poses the fetters on the lands ; and that although a person not
feudally invest may have such a personal right as will enable him
to create a personal obligation on the party in whose person the
estate stands, to execute an entail of it in certain terms, still he
cannot himself entail it ; and the deed by which be creates the
obligation to entail, in whatever shape it may be drawn, can never
in reality amount to more than instructions or directions to the
party feudally invest in the lands, as to- the terms in which he wis
to execute the entail ; and in reference to the arguments drawn
from the conveyance to Lord Hermand by Sir Adam in the
present case, being merely a trust which left the beneficial fee
still in the person of Sir Adam, that, in point of fact, the con-
veyance to Lord Hermand was absolute, and the fee waa vested
unconditionally in his person, so that it could not be restored to
Sir Adam by a mere renunciation of the right,' as might be donq
COURT OP SESSION. 089
in the case of proper trusts; and beside*, that in the case of
Smollett, it bad been found that the entail was properly recorded,
when the deed so recorded was the conveyance by the trustees in
terms of the trust-deed, and not the trust-deed itself, which, ac*
cording to the defender's plea, must have been the proper entail ;
and,
2. That if Lord Hermand's deed did not require to be recorded,
then the heirs would possess on titles setting forth fetters materi-
ally different from those of the entail which appeared on the re-
cord ; because, although the two entails were word for word the
same, yet the effect was in many instances totally different, seeing
that Sir Adam's deed had reference to other lands contained in
the same deed, and so created an irritancy of the whole lands by
the sale of any part of all the lands included in the entail ; while,
in Lord Hermand's deed, the estate of Drummellan being the
only lands mentioned, no irritancy would apply under it, although
the whole lands contained in Sir Adam's deed were soldi provided
no part of the lands of Drummellan were disponed.
On the other hand, it was contended by the defenders,
1. That there being in the narrative of Lord Hermand's deed
an acknowledgment that he held the lands only in trust for Sir
Adam, that was sufficient legal evidence of the existence of the
trust; and consequently it must be. held that the beneficial fee re-
mained in Sir Adam, subject merely to the burden of the trustrcon-
veyance to Lord Hermand, on the principle of the decision in the
case of Edderline : — that Sir Adam, therefore, had power to exe-
cute an entail, and to call on Lord Hermand to renounce or denude
in terms of it ; and that Lord Hermand had no power to execute
an entail, but could merely reconvey in implement of Sir Adam's
entail, which, though requiring the reconveyance to complete it
in point of form, was that which truly created the fetters, and
ought to be recorded in the same way that the procuratory of
resignation had been held in the case of Irvine to be the original
tailzie, and not the charter which completed the right. It was
further argued, that if Sir James had brought against Lord
Hermand an adjudication in implement of his obligation to re*
convey, and had obtained a charter of adjudication in terms of
Sir Adam's entail, the ' original tailzie5 to be recorded would not
have been the charter, but Sir Adam's deed, which* by parity
of reasoning, must, in the present case, be held to be the true
entail ; and,
&. That as to the supposed discrepancy in effect of the two
deeds, as the one was a transcript of the. other, and avowedly to
give effect to it, it must necessarily be interpreted reasonably, so
as to apply to the same lands.
940 CASES DECIDED IN THE
The Court ' decerned in terms of the first conclusion of the
* libel as amended, and in so far repelled the defences, and re-
' called the interlocutor of the Lord Ordinary,' — thereby finding
that Lord Hermand's deed, in respect of its not being recorded,
could form no bar to the diligence of the pursuer.
Lord Glenlee.— As to the first conclusion, that Lord Hennandt
deed, not being recorded, cannot be>eflectual against creditors, there
% can be no doubt. But the second is in a different situation, and
I think there are no grounds for it at all ; for the personal right
under the entail required no title to complete it in the person of
Sir Adam, and so Sir James could not possess the lands on sjfs-
rency, but only under the. deed. In fact, he had made up anffideat
titles to carry this right, as he had been served heir of entail in spe-
cial to the other lands contained in the deed ; and tins included t
general service in the same character, and consequently carried afl
personal rights under the entail. Then, as to the last conclusion,
I doubt the propriety of pronouncing any general declaratory judg-
ment that lands are subject to diligence, when many things nay
occur to prevent their being carried away ; and at all erents, in this
easel should not wish to come to a decision without consulting the
other Judges. I think it will be enough to find, in terms of the first
conclusion, that Lord Hermand's deed is no bar, and leave the pur-
suer to try the rest by doing diligence.
* The other Judges having concurred in this proposal, judgment was pro-
nounced accordingly.
Pursuer'* Authorities.— K'mnaMy Hoy. 26. 1751,(16611); Bloomfieti, Jose*
1794, (15619) ; Smollett, May 14. 1807, (Ap. Taibi^ 1*.)
Defender* § Authorities. — Irvine, June 96. 1776, (Ap. Tailzie, 1.); Bddtoone'i
Creditors, Jan. 14. 1601, (Ap. Adjudication, 11.) ; Douglas, Feb. & IT^i
.Russell, Jan. 31. 1799.
Hunter, Campbell, and Cathcart, W. S. — Walker, Rjchaemon,
and. Melville, W. S. — Agents.
July u. 1827. 4ct qf Sederunt as to Reclaiming Notes.
By this Act it is ordained,
1. That Reclaiming Notes against Interlocutors passing or re-
fusing Bills of Suspension or Advocation shall have appended
thereto, as an Appendix, a printed copy of the .Bill, and also s
printed copy of the Answers when the Bill has been followed with
Answers ; and,
£. That Reclaiming Notes against the Interlocutor of a perma-
nent Lord Ordinary in the Outer House, in a process of Suspen-
sion or Advocation, shall be accompanied with a printed caff of
the Letters of Advocation, as well as of any other plftKfry com-
posing the record in the Outer House.
INDEX OF NAMES
IN
VOLUME V.
Pursuers
Defenders.
No.
Page.
Aberdeen's Trustees, Earl of
i Gordon, C. (S hand's Trus
\ tee,)
Adair, Mrs. &c.
263
724
Adair, W.
519
Agnew's Trustees,
Macneel, A. &c.
182
909
Aitken, R. &c.
i Shotts and Airdrie Road
( Trustees,
H
135
Alexander, A.
Pinkerton, R.
115
185
Alexander, M. &c.
Inglis, J. and W.
41
53
Allan, D.
His Creditors,
168
291
Allan, R.
Swan, H. &c.
155
261
Anderson, Child, and Child, Petitioners,
275
543
Anderson, A.
Rintoul, R. &c.
350
744
Anderson, £.
Low, H. M.
31
44
Anderson, H.
Nelson, J.
438
899
Anderson, J.
Borthwick, W. &c.
424
879
Anderson, M. &c.
Boyd, J.
460
927
Anderson, W.
Sommers, W.
36
49
Anderson, W. &c.
Chalmers and Guthrie,
318
694
Arrot, C.
White, Dr. &c.
260
517
Atholl, Duke of, &c.
Wedderburn, H. S. &c.
93
153
Attorneys of J. Dye,
Thornton, R. .
114
185
Auchinleck, J.
Craig and Baxter,
232
418
Auld, W.
Baird, T.
156
264
Austin, I. and S. &c.
Wallace, D. &c.
110
ill
Austin, W. &c.
Grant and Anderson,
324
701
Baikie, J. &c.
Logic, Rev. W.
278
546
Baird,
His Creditors,
255
508
Baird, Rev. Dr. G. H.
Little's Trustees,
394
820
Bannatyne, R. &c. Petitioners,
»
310
684
Barbour, G.
Stewart, W.
284
559
Barbour, J.
Grierson, A.
292
603
Barclay, J.
Gillon, W. D.
413
850
Barry, D.
Geddcs, J.
343
727
11
INDEX OF NAMES.
Defenders.
Ewart, R.
Pursuers.
Baxter, W.
Bazett Farquhar, Crawford, ) R ^ ^
and Company, >
Beattie, E. Haliburton, J.
Bell, D. J. Graham, J«
Berry, J. Allen, J. L.
Black, J. Brown, W.
Blackett, E. &c. Berry and Forster,
Blackie, Fullarton,andCom->AikmaiiandIreland>
pany,
Blaikie, J. Petitioner,
Bontine, R. C.
Borthwick, P.
Borthwick, P.
Carrick, J.
Urquhart, Mrs.
Wright, R. &c.
Shaw, J.
Boyd, J.
Braidwood, W. (Manager of
Sea Insurance Company of J. Gavin, J. &c.
Scotland,) &c.
Brodie, W.
Brown, G.
Brown, J.
Brown, J.
Brown, W.
Bruce, J. C.
Bruce, Miss M. M.
Bruce, T.
Bruce, W. &c.
Bryce or Webster, Mrs.
Buccleuch, Duke of
Brodie, M. &c.
Duke of Gordon,
Turner, J.
Oliver, T. and A.
Wemyss and Walker,
Borthwick, P.
Bruce, M.
Bruce, J. C.
Sandeman, P.
Aitken, Mrs. &c.
.Cunynghame, Sir W. A.
BDukeCof '■* QueeMberry' \ ferierson, A. &c.
Buchanan, A. (Collector of
• Poor Rates for the City of J. Parker, C. S.
Glasgow,)
Buchanan, J.
Buchanan, Mrs. &c.
Buie, A.
Bullock, J.
Burns, A.
i Pringle or MTHurdo, Mrs. 1
\ Anne, &c. J
No. Page.
388 813
90 50
142 236
140 234
129 212
257 508
201 335
S34 719
158 268
387 811
146 242
171 293
233 413
226 375
268 525
440 900
258 514
191 321
400 831
326 703
261 517
78 119
396 822
299 668
392 817
44 57
304 676
305 677
Dunlop, J.
Corbett, Borthwick, and Co.
Lady Gordon, &c.
Crawford, A. &c.
M'Kenzie, P.
Caldwell, A. &c.
Cameron, Colonel
Campbell, A. &c.
Campbell, A.
Campbell, A.
Campbell, C.
Campbell, Lieut. D.
Campbell, J. jun.
Campbell, P.
Campbell's Trustees,
Hill, R.
Campbell, C.
Hill,R.
Anderson, A.
MacdoneU, Colonel A.
Smith, J.
230 390
242 468
382 805
238 464
335 721
108 174
331 715
430 888
42 54
186 314
264 521
58 86
231 412
373 7W
INDEX OF NAMES.
ill
Pursuers.
Defenders.
No.
Page.
CT£3^ gb**\"-*^.*-* .
180
219
Campbell, S.
Campbell, A. &c.
209
344
Campbell, W.
Baird, R.
203
335
Cargill, T.
Baxter, J.
34
48
Carrick, D.
Mather, W. &c.
128
211
Chalmers, D.
Ogilvie, W.
276
544
Chalmers, J. and I.
Chalmers, D.
315
687
Christie, A. Petitioner,
170
293
Christie, C. Petitioner,
141
235
Clark, J.
Scott, J.
73
109
Cleghorn, D. (T. Kyle's
Gordon, R. &c. (D. Kyle's
Trustee,)
Trustees,
122
208-
Cochran, J.
Simpson, J.
314
687
Cockburn, J. &c.
Wallace, W. &c.
69
106
Collector of Poor Rates
the City of Glasgow,
fori Parker, C. S.
230
390
Colqnhoun, C.
Dunn, J. and A.
395
822
Colquhoun, Sir J.
Colquhoun, R.
3
3
Cook, J.
Moffat and Couston,
361
774
Copland, J.
Bethune, Colonel A.
160
272
Cotton, G.
Manuel, Mrs.
256
508
Cotton, — —
Manuel,
Note.
659
Couper, Professor, 8cc.
Bute, Marquis of
401
831
Craig-Gibson, J.
Walker, Sir P.
409
843
Cranstoun and Hay,
Scott, W.
46
62
Crawford, J.
Walker and Russell,
152
259
Crawford's Trustees,
Haig, W. &c.
827
705
Cuningham and Bell,
M'Kirdy, Mrs.
187
315
Cunningham, M. &c.
Thomson, Mrs. &c.
390
814
Cunningham, W. &c.
Boyd, J. and Company,
302
671
Curator ad Litem of A.
Austin, &c.
> Grant, H. &c.
324
701
Currie, Dr. C.
Jardine and Currie,
404
888
Dallas, J.
Fraser, R.
403
837
Dalrymple, Sir J. H. &c.
Callander and Fisher,
463
935
Davidson, Rev. Dr.
Falconer, T.
83
131
Davidson, Rev. Dr.
Falconer, T.
352
748
Davidson, R.
Robertson, Mrs.
354
751
Davie or Laing, Mrs.
Denny, W.
443
903
De Witt, Mrs. Alletta
Young, J. &c.
180
309
Dick, J.
Fleshers of Stirling,
159
268
Dickson, J.
Dickson, A.
30
43
Dickson or Roughead, Mrs.
Hunter, J. &c.
1«7
266
Dirom, W.
Boyd, J.
360
773
Dodd, J.
Allan, A.
870
789
Doeg, J.
MDonald, D. &c.
11
20
Dqig, E. &c.
Fenton, J. &c.
271
533
Dollar, J.
-Murdoch, J.
198
333
Dougall, J. &c.
Hutchison, W. &c.
135
224
IV
INDEX OF NAMES.
Pursuers. Defenders. No. Page.
Dove, J. and W. Smith, A. &c. 346 734
Duke of Buccleuch and I Grier8 A. &c. 818 &&
Queensberry, ) . '
., : Pringle or M'Murdo, Mrs. &c. 306 677
Duke of Queensbcrry's Exe- Irp^ q U2 180
. enters,, J *
Dunbar, Sir B. &c. Clyne, D. 402 836
Duncan, Dr. Arnott, H. 407 840
Duncan, J. Porterfield, J. C. &c. 74 111
Dunda8orWedderburn,Dame Dundas, J. 372 790
{Christie, J. (Harley's Trus-1 ,-ft -^
tee,) J
Reid, J. and J. 376 796
Nicolson, D. 451 915
Guthrie, H. 313 685
101 163
Thornton, R. 114 185
Dunlop, J.
Dunlop, R.
Dunlop, R.
Durham, W.
Durward, J. Petitioner,
Dye, J. &c.
Earl of Aberdeen's Trustees,
Earl of Eglintoun's Tutors,
Itarl of Elgin and Kincardine,
Earl of Stair,
Elder, J.
Elibank's Trustee, Lord
Eliott, Sir W. F.
Erskine, H. D.
Erskine, J.
Eyre, J. &c,
Fair, W.
Fairlie, J.
Falconer, T. &c.
Farie, J. &c.
Farquharson, A.
Ferrier, C. (Lyell's Trustee,)
Fife, Earl of
Fleming, B.
Forbes' Trustees,
Fordyce, T. J.
Fraser, A.
Fraser, J. B.
Fraser, Mrs.
Fraser, T. A.
Gall, A.
Garden, F.
Geddes, J.
Gibb and Macdonald,
Gibson, Thomson, and Co. .
Gibson, Sir A. C. M.
Gibson-Craig, J.
Gordon, C. (Shand's Tmstee,)337 724
Walker, W. F. 236 418
Fergusson, Mrs. &c. 148 243
Earl of Stair's Trustees, 248 476
Jack, A. 374 794
Hamilton, J. and T. 393 820
Cocks and Company, 26 40
Erskine, Major G. F. 322 696
Scott, D. 366 78S
Earl of Moray, 448 912
Stirling, Sir S.
Fergusson, Sir J. &c.
Sheills, J. and Company,
Muir, J. Executors of
Barstow, Miss
Young, Dr.
Duff, Sir J. &c.
Wilson and MTiellaa,
Welsh, W. A.
Cockburn, T.
Fraser, A. T. F.
Fraser, G.
Fraser, N. F.
Fraser, A. T. F.
Adie, Mrs. &c
M'Coll, H.
Hopkirk, J.
Baghott, Sir P. &c.
Cameron, ^—
Wills, J.
Walker, Sir P.
176 306
465 937
455 919
423 878
160 251
106 332
266 524
445 906
249 497
437 897
336 722
211 348
174 801
68 104
67 104
80 123
851 747
348 739
868 784
62 74
409 843
INDEX OF NAMES.
Pursuer*,
Defenders.
No. Page.
Gibson, Misses
Craig, R. &c.
840
726
Gibson, W.
Stewart, D.
380
803.
Gilchrist, D.
M'Gregor, J.
250
502
Gillespie, Wright, and Co.
Walkinshaw, &c.
357
764
Gillespie, Z.
Cowan's Trustees, &c.
161
273
Girdwood, C. and Co.
Pollock, Gilmour, & Co. &c.
254
507
Glasgow, Magistrates of
Dawson and Mitchell,
460
915
Glen, J.
Glen, S.
7
11
Glennie, W.
MThail,
65
100
Goddard, W.
Leith Dock Commissioners,
213
355
Golder, W.
Deans, J.
08
161
Gordon, A.
Royal Bank of Scotland,
102
164
Gordon, A.
Earl of Fife, &c.
281
550
Gordon, H.
Duncan, Mrs. J.
277
544
Gordon, H.
Duncan, Mrs. J.
291
602
Gordon, R. &c.
Romanes, J.
59
91
Gorman, E.
Hedderwick, J. W.
169
291
Qourlay, A.
Straton, D.
381
804
Governors of Heriot's Hospi-
tal, &c.
V Dicksons, Brothers
61
94
Gov, H.
MDonald, W.
245
472
Graham, Mrs.
M'Arthur and Johnston,
, *7*
49
Graham, J. and I.
Graham, D. and J.
383
806
Graham, S.
Martin, W.
132
221
Grant, 8.
M'Donald and Grant,
188
317
Greig, J.
Peebles, C.
345
738
Guild, J.
Leitch, W.
428
886
Gmthrie, A. M. &c.
Miller, G.
828
7H
Guthrie, W.
M'Eachern, P.
85
135
Halket, Sir C.
Elgin, Earl of
96
154
Halliday, J.
Halliday, T.
77
116
Hamilton, Dr.
Hope, Dr.
289
669
Hamilton, Duke of
Baillie, A. D. R. C. W.
20
80
Hamilton, H.
Wyllie, Mrs. J. &c.
838
716
Hamilton, J.
Dune's Trustees,
56
77
Hamilton, J.
M'Gilp and Shirra,
89
140
Harrowar's Trustees,
Erskine, Sir J. D.
178
307
Couper's Trustees,
224
374
Harvey's Trustees,
Leslie, J.
486
896
Harvie, R.
Ferguson, J.
8
14
Hay, J.
Grant and Smith,
312
686
Hay, P. .
Henderson, J. &c.
375
796
Heatlie or Logan, Mrs.
Cathcart, W. &c.
207
341
Heddle, F.
Garioch, C.
252
603
Henderson and Scot,
Ker and Johnston,
389
813
Henderson or Mercer, Mrs.
Admiralty Clerks,
429
886
Heriot's Hospital, Governors
of, &e»
V Dicksons, Brothers
61
94
Heritors and Kirk-Session of
Glassford,
| Orr, R.
456
921
VI
INDEX OF NAMES.
Pursuer*.
Defenders.
No.
Page
Heritors of Strathblane,
Hamilton, Dr.
449
913
Hill, R.
Hay, General A. L.
134
223
Hodge, P.
Wedderspoon, W.
153
261
Hope, A. &c.
Magistrates of Selkirk, Sec
. 353
749
Hopkirk, T.
Sinclair, N. &c.
162
273
Horsefall, A. and J. * *
Virtue, J. and Company,
23
36
Houston's Executors,
Porterfield, J. C. &c.
75
115
Howie, J.
56
77
Hunter, D.
Maule, Hon. W.
144
238
Hunter, J.
Dickson or Roughead, J.
235
417
Hunter, W.
(Executors of the Duke 0*1.306
J Queensbeny, J
678
Innes, J. R.
Earl of Fife,
285
559
Innes's Representatives,
f Earl of Peterborough's Exe-
1 cutors,
'|309
681
Irvine, P.
Thorn or Fiddes, Mrs. M.
272
534
Irving, —
Burnett, — —
311
684
Jack, J. and J.
•
Barton, J.
212
353
Jackson, R.
Jackson, Mrs. E.
185
314
Jeffrey, W. (Anderson's Trus
tee,)
" J- M'Gregor, J. and J.
35
48
Jeffreys, Miss J. and Mandatory, Petitioners,
200
334
Jobson, D.
Reid, A.
332
715
JoHneton, D.
Duncan, J.
297
660
Jollie or McNeill, Mrs. &c.
Moir, W.
33
47
Justice, Miss
Callender, W. B.
48
68
Kay, A.
Ronaldson, Mrs. &c.
181
309
Kennedy, A. &c.
Wightman, J.
415
852
Kerr, J.
Kirkwall, Magistrates of
379
802
Ker, J.
Baird,.J.
458
926
Kilpatrick, W.
Wighton and M'Kenzie,
435
895
King, J. &c.
King, J. &c.
53
76
King, J.
Shirra, W.
138
231
Kirk, D.
Kirk,W.
444
905
Kirk, Mrs. &c.
286
564
Kirkaldy, Magistrates of, Petitioners,
434
894
Kirkpatrick, J.
Threshie, R.
28/
565
Knox, D.
Brand and Berry,
329
714
Kyle, J.
Kyle, D.
82
128
Kyle, — ■
His Creditors,
267
525
Laing and Rhind,
Anderson, A.
414
851
Lang, J.
Reid and Monach,
13
21
Lauder, Magistrates of
Spence, A. &c.
225
375
Lawrie and Son's Trustee,
Campbell, P.
127
208
Lawson, J.
Wardrop, J.
86
136
Lennox's Trustee,
f Equitable Loan Company of) , , -
t Scotland, J11#
192
1NDJ
EX V¥ NAMJbB.
VII
Pursuer*.
Defenders.
No.
Page.
Leslie, Rev. W.
Earl of Moray,
167
284
Lindsay orM'Gowan, Mrs. &c
Anstruther's Trustees,
173
297
•i
Lindsay, J.
Lindsay, P. Sec.
183
310
i
Little, 0.
Oswald, R. A. &c.
283
558
Lockhart, Mrs. &c.
Trotter, Sir C. &c.
87
136
,
Lockwood and Co. &c.
Davidson, C. F.
104
168
Logan or Heatlie, Mrs.
Cathcart, W. &c.
207
341
Low, Dr. J. &c.
BallingalTs Trustees,
244
472
Lyle, A.
Greig, J. Sec.
410
845
Lynedoch, Lord, Sec.
Ouchterlony, J.
216
358
M'Allister, A.
Giffin, R.
17
29
Macalister's Trustees,
Macalister, K. M.
130
219
M'Allisters,
M'AUisters,
420
'862
M'Allister, Colonel M.
Trustees of Mrs* M'Allister,
,421
871
M'Bain and Arbuckle,
Innes, Thomson, Sec.
253
505
Maccallum, A.
Spears, J.
274
541
M'Cartney, A. (Manager of
Commercial Bank,)
v M'Kenzie, M.
202
335
M'Cartney, J. Sec.
Crosbie, C.
177
306
M'Clymont, J. '
Hughes, P.
210
346
M'Crone, J.
Campbell, D.
28
42
M'Culloch, J.
M'Nilidge, A.
247
473
MDonald, A.
M'Donald, A.
107
173
MDonald, J.
Denny, W.
378
801
Macdonald, Lord, &c.
Grant, P.
269
531
MDonald, W.
Jackson, D. Sec.
15
28
MTarlane, A. &c.
Magistrates of Edinburgh,
298
665
MTarlane, D.
Brown, J.
125
205
Macfarlane, J. and W.
A. B.
.273
537
MTarlane or Graham, Mrs.
Montrose, Duke of
24
38
M'Ghie, J.
Leishman, T.
355
758
M'Gowan or Lindsay, Mrs. 8ec.
Anstruther's Trustees,
173
207
M'Indoe, Anne, &c.
Lyon, G. Sec.
60
92
MTnnes, Colonel
Macintosh, C.
M'Allisters,
Forbes, D. G.
420
342
862
727
Mackay, G.
Murray, D.
22
34
M'Kenzie, A.
M'Kenzie, Mrs. Sec.
339
725
M'Kenzie, D.
Robertson, W.«Scc.
319
694
Mackenzie, K.
Fraser, W. Sec.
290
597 *
•
M'Kenzie, M.
M'Intosh, C. Sec.
417
856
M'Kenzie, M.
Rose, H.
453
916
Taylor, A.
457
925
M'Kenzie and Monro,
Magistrates of Dingwall, Sec
. 205
339
Mackenzie, R.
Fraser, C. Sec.
307
679
M'Kenzie, T.
Smith, Jane
116
189
M'Kenzie, T.
Noble, R.
219
36?
Mackie, C.
Harvie, Hall, and Company,
54
76
M'Lauchlan, J.
Carson, W.
91
147
McLean, C.
Bell, Mrs. Sec.
139
232
M'Lean, J.
Simson, W.
18
29
Till
INDEX OF NAMES.
Pursuers.
Defenders,
No.
Tag*.
Macleman, J.
Cameron, D.
221
370
M'Leod, J.
Hill, R.
1
1
M*Lure, W.
Jaffray, W. jun.
137
220
MTHichael, D.
Band, H. and R. &c.
240
407
MTVair, J.
M*Nair and Brunton,
223
372
MWair, J.
Gray and Woodrop,
347
735
MTVeel, A. &c
Robertson, Mr*. Ann
321
696
MWeill or Jollie, be.
Moir, W.
33
47
McNeill, D.
M*NeUl, Lieut-Colonel
49
n
Macpherson, Captain
MacRitchies and Murray,
Macpherson's Trustees,
399
026
Young, J. kc.
147
242
Magistrates of Glasgow,
Dawson and Mitchell,
450
915
Magistrates of Kirkaldy, Petitioners,
434
894
Magistrates of Lauder,
Spenee, A. &c.
225
375
MalcohntioB, M. &c.
Heddle, R.
iT9
549
Manager of Sea Insurance
Company of Scotland,
> Gavin, J. kc.
226
375
26*
525
Mar, Earl of
Alexander, G.
363
776
Maijoribanks, A. jun.
Houldsworth, T. fee-
222
*72
Man- and Stephen,
Low, J.
239
466
Marston, J. and M.
Underwood, W.
120
260
Martin and Simpson,
Leishman, J.
362
775
Martin, W.
Underwood, W.
365
783
Manle, W.
Maule, Hon. W.
151
256
Maxwell, M.
f Duke of Queensbeny's Ex-
\ ecutors,
J 464
935
Megget, T. fee.
JimyHiflon, *-»• r.
104
163
Mogget,T.
Thomson, W.
164
275
Megget, T.
Brown, Rev. A.
208
343
Mein, A.
Taylor, M. kc.
364
770
Meldrum's Trustees,
Clark, A.
7*
122
Meldrum, A.
Maitland, F. L. &c
413
357
Menzies, J.
Berry, J. tod J.
71
103
Menzies, J.
Abercromby, Sir G. &c
103
166
Menzies, Sir N. &c.
Duff, A. kc.
427
884
Mickle, 6.
Burnett, C.
243
473
Middleton, M. and B.
Yorstoun, Rev. J.
160
162
MahoDaa, D.
Bertram, R. &c.
105
170
Millar, A*
Gibson-Craig, J. kc.
40
52
Millar, A.
Gibson-Craig, J. kc.
175
305
Miller, J. kc.
Brown, G. &c.
»7
325
Miller, J.
His Creditors,
461
929
Miller and Carrick,
Morrison, J. &c.
301
671
Miller, T.
Wilson, R.
459
926
MUllgan, Dr.
Milligan, P. kc
126
206
Mills, W. fee.
Albion Insurance Co. kc
402
930
Mitchell, J.
Brown, R. &c.
43
50
Mitchell, J.
Frew, J. &c
443
#09
Moffirt, J.
Alston, J. &c.
431
'4*1
MoateHh, H. and Co.
Blaekie, W.
166
289
INDEX OF NAMES.
i*
Pursuers.
Morrison, J.
Morrison, J. &c.
Muir, A. fee
Monro or Rose, Mrs. C.
Munro, D.
Munro, J.
Monro, J.
Mure, W.
Murray, J. &c.
Murray, R,
Murray, R.
Napier, D.
Napier, J.
Nicol, J.
Nicol, R.
Nicol, T.
Officers of State,
Oswald, A.
Oswald and Waddell,
Padon, J.
Paterson, D.
Pateroon's Trustees,
Pattison, W. (Lawrie and
Son's Trustee,)
Pedie, J.
Pentland,G.
Perston, M.
Peter, W.
Phin, J.
Pollock, J.
Pollock, W.
Porterfleld, J. C.
Queensberry's Executors,
1 Duke of
Ramsay, W.
Ramsay, W. and J.
Reid, Captain J.
Renny, Mrs. and Miss
.representatives of J. Innes,
Rickman and Parry,
Ritchie, A.
Defenders.
Ramsay, J.
{Miller, M. &c. (Morrison's
Trustees,)
Monro, D.
Ross, 6.
M'Neill, Mrs. E.
Brown, P.
Hogg, J.
Railton, G.
Thomson, J. T.
Thomson, W.
Lawrie's Trustees^
Lang, J.
Thomson, J.
Crichton, R.
Christie, A.
Anderson's Trustees,
Magistrates of, Brechin,
Patison, J.
Lawrie, J. Sec.
Bank of Scotland,
Mitchell, A.
Brown, G.
> Campbell, P.
}
No.
92
Pag*.
150
192 322
190
294
149
384
391
194
38
113
259
25
295
97
425
441
Matheson, Mrs.
Paterson, D.
M'Alister, J.
Mitchell, W. &c.
i Magistrates of Auchter-
( muehty, &c.
Kirkwood, J.
Turnbnll, J.
Porterfield's. Trustees,
^Tait, C.
Aitken, Di\
M'Leish, J.
Walker, J.
Balderston, J.
i Earl of Peterborough's Exe-
{ cutors,
M'Lachlan, J.
Mackay, J*
63
432
143
118
}317
405
119
367
321
605
251
807
817
328
50
183
515
40
658
156
882
902
303 672
81 127
227 381
109 175
29 43
123 204
127 208
97
889
274
193
690
839
195
784
112 180
2#^21
27 ^i
60 72
90 140
193 328
1 309 681
323 700
99 l6l
INDEX OF NAMES.
Pursuers,
Defenders.
No. Page.
Robertson, J. &c.
Bell's Trustees,
154
261
Robertson's Trustee,
Oughterson, J. &c.
386
809
Rodgers, G. &c.
Harvie, T.
454
917
Rose or Munro, Mrs. C.
Ross, G.
294
605
Rose, H.
M'Leay and Horne,
426
883
Rose, H. &c.
Magistrates of Tain,
447
911
Ross, A. (D. Lennox's Trus<
- Equitable Loan Company of
tee,)
Scotland,
117
192
Roughead or Dickson, Mrs.
Hunter, J. &c.
157
266
Rowand, M.
Stevenson, N.
442
903
ftowat, J.
Whitehead, Dr. R.
10
19
Roy, W. &c.
Wright, T. &c.
70
107
Rucker, J.
Fischer, J. G. C. &c.
45
61
Russell, C
Macdonell, J.
143
238
Russell, C.
Earl of Breadalbane,
433
891
Russel, J. (Trustee of Fal-
: kirk Union Bank,)
J- Glen, R. &c. ,
133
221
Sassen, Madame
Campbell, Sir J.
439
899
Saunders, 6.
Renfrewshire Banking Co.
288
565
Scot, Rev. D.
Ramsay, W. R.
220
367
Seott, A.
Farquharson's Trustees,
320
695
Scott, Mrs.
Napier, J.
234
414
Scott, P.
Gillespie, T.
300
669
Scott, Bonar, &c.
Drysdale, W.
316
689
Scott, T.
Patison, J. jun.
106
172
Scott, T.
Alexander, A.
330
714
Scot, T.
Leith Banking Company,
452
916
Scougal and Co.'s Trustee,
Porterfield, J. C. &c.
74
111
Sea Insurance Company of
Scotland,- &c.
> Gavin, J. &c.
226
375
!
268
525
Sharpe, J.
M'Gown, D.
88
139
Sharp, J.
M'Gowan, D.
172
297
Sharp, J.
Thomson, G. &c.
338
744
Sharrat, S.
Turnbull, J.
217
361
Shaw, J. &c.
Forbes, W. &c.
356
761
8im, D.
Stewart, G.
408
841
Sloan, Mrs.
Birtwhistle, J.
340
742
Smith and Tasker,
Robertson, R. &c.
412
848
Smith; D. Petitioner,
214
357
Smith, J. &c*
Logan, W.
21
32
Smitha J.
Bank of Scotland,
64
9*
Smith. J.
Hart, J. &c.
121
201
Smith, J.
Miller, P.
204
3*
Smith, J.
Innes', Sir H.
218
304
Smith, P. fee.
Aitken, R. &c.
206
340
Smyth, C.
Nisbet, A.
229
388
Smyth, J.
Ninian, Q. D.
6
8
Soutar, A. Representatives <
of Soutar, J.
422
876
Speir, R.
Dunlop, J.
344
7*
INDEX OF NAMES.
xi
Pursuers.
Defenders.
No.
Page.
Spence, J.
Eadie, J.
51
72
Spence, W.
Ross, A.
0
17
Spiers, A.
Ardrossan Canal Company, 358
764
Sproat, J.
J Mure, W. &c. (Corrie's ) .-
\ Trustees,) S
66
Stair, Earl of
Earl of Stair's Trustees,
248
476
Stafford, Marquis of, &c.
M'Kenzie, M.
406
839
Stark, J.
Edmonstone, Sir A.
32
45
State, Officers of
Magistrates of Brechin,
303
672
Steel, J.
Hamilton, A.
385
809
Stein, R. &c.
Stein, Misses
66
101
Stephen, J. &c.
Low, J.
239
466
Stewart, A.
Lang, G.
2
2
Stewart, A.
A.B.
296
658
Stewart, D.
Mitchell, Colonel, &c.
124
204
Stewart, F. C.
Fullertou, S. M. &c.
237
418
Stewart, Sir H.
M'Donald, C. J.
19
29
Stewart, J.
Cameron, D.
282
557
Stewart, Lieutenant
Earl of Fife, &c.
228
383
Stratbbhuie, Heritors of
Hamilton, Dr.
449
913
Sutherland, D.
Paul, H. &c.
325
703
Sutherland, Mrs. &c.
Fraser, Mrs. &c.
76
116
Tait, C.
Mackenzie, J.
197
338
Tait, J. &c.
Earl of Lauderdale,
195
330
Tatnall, J. B.
Reid, A. &c.
165
277
Taylor, Major
Forbes, Sir W. and Co.
369
785
Taylor, J.
Wight, G.
377
797
Taylor, J. and Sons,
Hall, R. &c. '
419
860
Taylor, R.
Ferguson, J.
411
848
Thomson, A,
Harvie, T.
136
227
Thomson, A.
Miller, J.
371
789
Thomson, J. and Sons,
Broom, J. &c.
241
468
Tony, A. &c.
Spence, J.
398
825
Trotter, Y.
Trotter, W. &c.
57
78
Trustee of Falkirk Union
Bank,
> Glen, R. &c.
133
221
Trustee of T. Kyle,
Trustees of D. Kyle,
122
208
Trustee of Lawrie and Son,
Campbell, P.
127
208
Trustee of D, Lennox,
i Equitable Loan Company <
\ Scotland,
Df}ll7
192
Trustees, Earl of Aberdeen's
Gordon, C. (Shand's Ti ustee~,)337
724
Trustees of R. V. Agnew,
Macneel, A. &c.
182
309
Trustees of Crawford,
Haig, W. &c.
327
705
Trustees of Paterson,
Brown, G.
123
204
Tullis, R.
Houy, G.
92
149
TuHis, R.
Bruce, J. C.
270
538
Turner, E.
Gibb and Macdonald,
215
858
Tutor ad Litem of I. and S.
Austin,
> Wallace, D. &c.
no
177
Tutors, Earl of Eglintoim's
Walker, W. F.
286
418
Jrii
INDEX OF NAMES.
Pursuers.
Defenders.
No.
Page.
Waddcl, W.
Park, R.
1S1
221
Walker, A.
Inglis, W.
341
726
Walker, W. F.
Earl of Eglintoun's Tutors,
145
240
Walker, W.
Grieve, J.
243
469
Wallace, D.
Anderson, W.
111
179
Watson, J.
Grindlay, J.
4
3
Watt, J,
Anderson, W. and So*,
62
96
Watt, J.
Mlntosh, R.
199
334
White, J.
MTarlane, W.
72
108
White, W.
Ballantyne, R.
14
22
Wight, A,
Dewar, Isabella
280
549
Wightman, J.
Bonar, T.
16
29
"^lgftwl"™*, r!nmmi<wlnn«rs
> Officers of State, &c.
359
0.4.0m
of Supply of
4&1
Wilson, A.
Millar, G.
12
29
Wilson and Alpine,
Glasgow Society of Teachers, 5
6
Wilson, J.
Mitchell, J. and J»
189
318
Wilson, J.
Jamieson, H.
262
518
Wilson, W.
Dalziel, J.
306
681
Wright and Anderson,
CHenly, D.
184
311
Wright, J.
Watson, Janet
293
604
Wright, J.
M'Gregor, J.
416
855
Young, Gf
Paton, G.
94
151
Young, W.
Robertson, J.
251
502
A.B.
Defenders.
Abercromby, Sir G. &c.
Adair, Mrs. &c.
Adie, Mrs. &c.
Admiralty Clerks,
Ait ken, Dr.
Aitken, R. &c.
Aitken, Mrs.
Aikman and Ireland,
Albion Insurance Co. fee.
Alexander, A.
Alexander, G.
Allan, A.
Allan's Creditors,
Allen, J. L.
Alston, J. &c.
Anderson, A.
Anderson, A.
Anderson, W. and Son,
Pursuers.
No*
F«*«*
Macfarlane, J. and W.
273
537
Stewart, A.
296
658
Menzies, J.
103
168
Adair, W.
263
519
Gall, A.
67
104
Henderson or Mercer, Mrs.
429
886
Ramsay, W.
27
41
Smith, P. &c.
206
340
Bryce or Webster, jlf rs.
392
817
Blackie, Fullarton, and Co.
334
719
Mills, W. &c.
462
930
Scott, T.
830
714
Mar, Earl of
363
776
Dodd, J.
370
789
Allan, D.
166
291
Berry, J.
129
212
Monat, J.
431
889
Campbell, C.
58
86
Laing and Rhind,
414,
851
Watt, J.
6«
96
INDEX OF NAMES.
XIII
Defender*.
Anderson, W.
Anderson's Trustees,
Anstruther's Trustees,
Ardrossan Canal Company,
Arnott, H
Pursuers. . No.
Wallace, D. Ill
Nicol, T. 441
Lindsay orM'Gowan, Mrs. feci 73
Spiers, A. . 358
Duncan, Dr. 407
A^chtermuchty, Magistrates I ^ , ^
Baghott, Sir P. &c.
Baillie, A. D. R. C. W.
Baird's Creditors,
Baird, H. and R. &c.
Baird, J.
Baird, R.
Baird, T.
Balderston, J.
Ballingall's Trustees,
Ballantyne, R.
Bank of Scotland,
Barnett, C.
Barton, J.
Barstow, Miss
Baxter, J.
Bell, Mrs. &c.
Bell's Trustees,
Berry, J. and J.
Berry and Forster,
Bertram, R. &c.
Bethune, Colonel A.
Birtwhistle, J.
Blackie, W.
Bonar, T.
Borthwick, P.
Borthwick, W. &c.
Boyd, J. and Company,
Boyd, J.
Boyd, J.
Brand and Berry,
Breadalbane, Earl of
Brechin, Magistrates of
Brodie, M. &c.
Broom, J. &c.
Brown, Rev. A.
Brown, O.
Brown, O. fcc.
Brown, J.
Brown, P.
Brown, R. &c.
Brown, W.
Bruce, J. C.
Gibb and Macdonald,
Hamilton, Duke of
Baird,
M'Michael, D.
Ker, J.
Campbell, W. i
Auld, W.
Benny, Mrs. and Miss
Low, Dr. J. &c.
White, W.
Smith, J. &c.
Padon, J.
Mickle, 6.
Jack, J. and J.
Farquharson, A.
Cargill, T.
M'Lean, C.
Robertson, J. &c.
Menzies, J.
Blackett, E. &c.
Milhollan, D.
Copland, J.
Sloan, Mrs.
Monteith, H. and Co.
Wightman, J.
Bruce, J. C.
Anderson, J.
Cunningham, W. &c.
Dirom, W.
Anderson, M. &c.
Knox, D.
Russell, C.
Officers of State,
Brodie, W.
Thbmson, J. and Sons,
Megget, T.
Paterson's Trustees,
Miller, J. &c.
MTarlane, D.
Munro, J.
Mitchell, J.
Black, J.
Tullis, R.
348
20
256
240
458
203
156
193
244
14
64
100
246
212
150
34
139
154
71
201
105
160
349
166
16
261
424
302
360
460
329
433
303
440
241
208
123
397
125
384
43
257
270
Page.
179
902
297
764
840
690
739
30
508
467
926
335
264
328
472
22
98
175
473
353
251
48
232
261
108
335
170
272
742
280*
29
517
879
671
773
927
714
891
672
900
468
343
204
825
205
807
56
508
533
XIV
INDEX OF NAMES.
Defender 8.
Pursuers.
No.
Pa^e.
Brace, J. C.
Brace, T.
396
822
Brace, M.
Bruce, Miss M. M.
78
119
311
684
irving,
%&^w
Bate, Marquis of
Cooper, Professor
401
831
Callander and Fisher,
Dalrymple, Sir J. H. &c.
463
935
Callender, W. B.
Justice, Miss
48
69
Cameron, D.
Macleman, J.
221
370
Stewart J
282
557
784
Cameron,
OLCWttf t, Vm
Gibson, Thomson, and Co.
368
Campbell, A. &c.
Campbell, S.
209
344
Campbell, C.
Campbell, A.
186
314
Campbell, D.
M'Crone, J.
28
42
Campbell, Sir J.
Sassen, Madame
439
oV9
Campbell, P.
f Pattison, W. (Lawrie and
\ Son's Trustee,)
J 127
208
Campbell, P.
Caldwell, A. &c.
331
715
Campbell's Trustees,
Cameron, Colonel
430
688
Carrick, J.
Bon tine, R. C.
387
811
Carson, W.
M'Lauchlan, J.
91
147
Catheart, W. &c.
Heatlie or Logan, Mrs.
207
341
Chalmers and Guthrie,
Anderson, W. &c.
318
674
Chalmers, D.
Chalmers, J. and I.
315
687
Christie, A.
Nicol, R.
425
882
Christie, J. (Harle/s Trus-
tee,)
V Dunlop, J.
179
308
Clark, A.
Meldrum's Trustees,
79
122
Clyne, D.
Dunbar, Sir B. &c.
402
836
Cockbura, T.
Fordyce, T. J.
437
897
Cocks and Company,
Eliott, Sir W. F.
26
40
Colquhoun, R.
Colquhoun, Sir J.
3
3
•Corbett, Borthwick, and Co.
Buchanan, Mrs.
382
805
. Couper's Trustees,
Harrowar's Trustees,
224
374
Cowan's Trustees, &c.
Gillespie, Z.
161
273
Craig and Baxter,
Auchinleck, J.
232
418
Craig, D. &c.
Gibson, Misses
340
726
Crawfurd, A. &c.
Bullock, J.
335
721
Crichton, R.
Nicol, J.
97
156
Crosbie, C.
M'Cartney, J. &c.
177
306
Cunynghame, Sir W. A.
Buecleuch, Duke of
44
57
Dalrymple, General, &c.
Milhollan, D.
105
176
Dalziel, J.
Wilson; W.
308
681
Davidson, C. F.
Lockwood and Co. &c.
104
166
Dawson and Mitchell,
Magistrates of Glasgow,
460
915
Deans, J.
Golder, W.
98
161
Denny, W.
McDonald, J.
378
801
Denny, W.
Davie or Laing, Mrs.
443
903
Dewar, Isabella
Wight, A.
280
541
Dickson, A.
Dickson, J.
#30
43
Dickson or Roughead,' J.
Hunter, J.
235
417
INDBX OF NAMES.
xv
Defenders.
\ Pursuers.
No.
Page.
Dicksons, Brothers,
( Governors of Heriot's Hospi-
\ tal, &c.
■}"
94
Dingwall, Magistrates of, fee.
M'Keniie and Munro,
205
339
Drysdale, W.
Scott, P. &c.
316
689
Duff9 A. &c.
Menzies, Sir N. &c.
427
884
Duff, Sir J. &c.
Earl of Fife,
266
524
Duke of Queensberry's Ex-
Duke of Buccleuch and
;
ecutors,
Queensberry,
304
305
306
676
677
678
- Hunter, W.
- Maxwell, M.
464
935
Duflcan, Mrs. J.
Gordon, H.
277
544
Duncan, Mrs. J.
Gordon, H.
291
&02
Duncan, J.
Johnston, D.
297
660
Dundas, J.
Dundas or Wedderburn,Dame 372
790
Dunlop, J.
Buchanan, J.
242
468
Dunlop, J.
Speir, R.
344
729
Dunn, J. and A.
Colquhoun, C.
395
822
Dune's Trustees,
Hamilton, J.
65
77
Eadie, J.
Spence, J.
51
72
Earl of Breadalbane,
Russell, C.
433
891
Earl of Eglintoun's Tutors,
Walker, W. F.
145
240
Earl of Elgin,
Halket, Sir C.
96
154
Earl of Fife, &c.
Stewart, Lieutenant
228
383
Earl of Lauderdale,
Tait, J. &c.
195
330
Earl of Moray,
Leslie, Rev. W.
167
284
Earl of Moray,
Eyre, J. &c.
448
912
Earl of Peterborough's Ex*
ecutors,
> Innes, J. Representatives of 309
681
Earl of Stair's Trustees,
Earl of Stair,
248
476
Edinburgh, Magistrates of
M'Farlane, A. &c.
298
665
Edmonstone, Sir A.
Stark, J.
32
45
Erskine, Major 0. F.
Erskine, H. D.
322
696
Brskine, Sir J. D.
Harrowar's Trustees,
178
307
Ewart, R.
Baxter, W.
388
813
Falconer, T.
Davidson, Rev. Dr.
83
131
Falconer, T.
Davidson, Rev. Dr.
352
748
Farquharson's Trustees,
Scott, A.
320.
695
Fenton, J. &c.
Dbig, E. &c.
271
533
Ferguson, J.
Taylor, R.
411
848
Fergusson, Sir J. &c.
Fairlie, J.
465
937
Fergusson, Mrs. &o.
Earl of Elgin and Kincardine, 148
243;
Fiddes or Thorn, Mrs. M.
Irvine, P.
272
534.
Fife, Earl of, &c.
Stewart, Lieutenant
228
383
Fife, Earl of, &c.
Gordon, A.
281
560
Fife, Earl of
Innes, J. R.
285
559
Fischer, J. G. C. &c.
Rucker, J.
45
61
Fleshers of Stirling,
Dick, J.
159
268
Forbes, D. G.
Macintosh, C.
342
727
XVI
INDBX OF NAMES,
Defenders.
Pursuers*
No.
Pag*
Forbes, Sir W. and Co.
Taylor, Major J. &c.
369
785
Forbes, W. &c.
Shaw, J. &c.
356
761
Fraser, A. T. F,
Fraser, T. A.
68
104
Fraser, A. T. F,
Fraser, A.
336
722
Fraser, C. &c.
Mackenzie, R.
307
679
Fraser, G.
Fraser, J. B.
211
348
Fraser, Mrs. &c.
Sutherland, Mrs. &c.
76
116
Fraser, N. F.
Fraser, Mrs.
174
301
Fraser, R.
Dallas, J.
403
837
Fraser, W, &c.
Mackenzie, IL
200
597
Frew, J. &c.
Mitchell, J.
446
909
Fullerton, 8. M,
Stewart, F. C,
237
418
Garioch, C.
Heddle, F.
262
503
IBraidwood, W. (Manage
r)
Gavin, J. &c,
< , of Sea Insurance Company } 226
375
I of Scotland,) &c.
■
^* f
268
52£
Geddes, J.
Barry, D.
343
727
Gibb and Macdonald,
Turner, £.
215
358
Gibson-Craig, J. &c.
Millar, A.
40
52
Gibson-Craig, J. &c.
Millar, A.
175
305
Giffin, R.
M'AUister, A,
17
29
Gillespie, T.
Scott, P.
300
669
Gillon, W. D. &c.
Barclay, J.
413
850
Glasgow, Magistrates of, &c.
Aitken, R. &c.
84
135
Glasgow Society of Teachers,
, Wilson and Alpine,
• 5
6
•
Glen, R. &c.
JRussel, J. (Trustee of the
I Falkirk Union Bank,)
il33
221
Glen, S.
Glen, J.
7
11
Gordon, C. (Shand's Trustee,]
) Earl of Aberdeen's Trustees, 337
724
Gordon, Duke of
Brown, G.
258
514
Gordon, Lady, &c.
Buie, A.
238
464
Gordon, R. &c. (D. Kyle's
Cleghora, D. (T. Kyle's
•
Trustees,)
Trustee,)
Graham, Mrs.
122
203
Graham, D. and J.
383
806
Graham, J.
Bell, D. J.
140
234
Grant and Anderson,
Austin, W. &c
324
701
Grant and Smith,
Hay, J.
312
685
Grant, P.
Macdonald, Lord, &c. ,
269
561
Gray and~Woodrop,
Greig, J.' &c
M'Nair, J.
347
735
Lyle, A.
410
845
Grierson, A.
Barbour, J*
292
60S
Grierson, A. &c.
J Duke of Buccleuch and
| Queensberry,
is04
676'
•
Grieve, J.
Walker, W.
243
469
Grindlay, J.
Watson, J.
4 4
3
Guthrie, H.
Durham, W.
313
685
Haig, W. &c.
Crawford's Trustees,
327.
745
Haliburton, J*
Beattie, C.
142
236
INDBX OF NAM E8;
xva-
Defen&era.
Hall, R. &c.
Halliday, T.
Hamilton, A.
Hamilton, Dr.
Hamilton, J. and T.
Hamilton, J. &c.
Hart, J. &c.
Harvie, Hall, and Company,
Harvie, T.
Harvie, T.
Hay, General A. L.
Hedderwick, J. W.
Heddle, R.
Henderson, J. &c.
Henderson, Sir R. &c. (An-
struther's Trustees,)
Heugh's Trustees,
hbi,r.
Hffl,R.
Hill, R.
Hogg, J.
Hope, Dr.
Hopkirk, J.
Houldsworth, T. &c.
Houy, G.
Hnghes, P.
Hunter, J. &c.
Hutchison, W. fcc.
Hyslop, A. &c.
Inglis, J. and W.
IngKs, W.
Innes, Sir H.
Innes, Thomson, &c.
Jack, A.
Jackson, D. &c.
Jackson, Mrs. E.
Jaffray, W. Jun.
Jamieson, H.
Jsrdihv, P. &c.
> ■
Kir and Johnston,
Ring, J. &c.
Etk,W.
KirkwaU, Magistrates of
Kirkwood, J.
Kyle, D.
Kyle's Creditors,
• Purtner*.
Taylor, J. and Sons,
Halliday, J.
Steel, J.
Heritors of Strathblane,
Elibank's Trustee, Lord
Mills, W. Sec.
Smith, J.
jxiaene, i>.
Thomson, A.
Rodgero, G. &c.
Hill, R.
Gorman, E.
Malcolmson, M. &c.
Hay, P. ,
Lindsay or M'Gowan, Mrs.
$c.
i Bazett,Farquhar,Crawford,
1 and Company,
M'Leod, J.
Campbell, A. &c.
Campbell, A.
Monro, J.
Hamilton, Dr.
Geddes, J.
Marjoribanks, A. jun.
Tullis, R.
M'Clymont, J.
Dickson or Roughead, Mrs.
Dougall, J. &c.
Milhollan, D.
Alexander, M. &c.
Walker, A.
Smith, J.
M'Bain and Arbuckle,
Elder, J.
MDonald, W.
Jackson, R.
M'Lure, W.
Wilson, J.
r*e,Dr.
\
No.
419
77
386
449
393
462
121
64
136
454
134
169
279
375
173
Henderson and Scot,
King, J. fee,
Kkk,D.
Kerr, J.
Pollock, J.
Kyle, J.
Kyle,
41
341
218
253
374
15
185
137
262
404
389
53
444
379
405
82
267
Page.
860
116
809
913
820
930
201
76
2*7
917
223
291
549
796
297
50
1
t
42
54
264
521
391
817
289
569
851
747
222
372
92
149
210
346
167
266
135
224
105
170
53
726
364
505
794
28
314
229
518
838
813
76
905
802
839
128
525
I*»g,G.
Stewart, A.
xviii
INDEX OF NAMES.
Defenders.
Pursuers.
No. 1
Page.
Lang, J.
Napier, D.
25
40
Lauderdale, Earl of
Tait, J. &c.
195
380
Lawrie, J. &c.
Oswald and Waddell,
227
881
Lawrie's Trustees,
Murray, R.
259
515
Lelshman, J.
Martin and Simpson,
862
77*
Leishman, T.
M'Ghle, J.
865
768
Leitch, W.
Guild, J.
428
886
Leith Banking Company,
Scot, T.
452
916
Leith Dock Commissioners,
Goddnrd, W.
218
855
Leslie, 3.
Harvey's Trustees,
486
886
Lindsay, P. &c.
Lindsay, J.
188
910
Little's Trustees,
Baird, Rev. Dr.
994
820
Logan, W.
Smith, J.
21
82
Logie, Rev. W.
Baikie, J. &c.
278
546
Low, H. M.
Anderson, E.
91
44
Low, J.
Mart and Stephen,
289
466
Lyon, G. &c.
M'lndoe, Anne, fee.
60
92
*
M'Alister, J.
Ronton, M.
168
2W
Macalister, K. M.
Manstister's Trustees,
180
219
M'Allisters,
M'fcmes, Colonel
498
962
McAllister, Mrs. Trustees of
M'AlBster, Colonel M.
491
972
M* Arthur and Johnston,
Graham, Mrs.
87
4*
M'Coll, H.
Garden, F.
90
128
MDonald, A.
McDonald, A.
197
ITS
McDonald, C. J.
Stewart, Sir H.
19
28
MDonald, D. &c. .
Brag, J.
11
2D
MDonaW and Grant,
Grant, S.
188
»17
MDonald, W.
Oow, a.
246
472
Macdonell, Colonel A.
Campbell, Lieut. D.
881
412
Macdonell, J.
Russell, C.
148
288
M'Eachern, P.
Guthrie, W.
85
185
MVarlane, W.
Whit*, J.
7*
199
MXxilp and Shirra,
Hamilton, J.
49
140
ftfGown, D.
Sharps, J.
m
198
M*Gowan, D.
Sharp, J.
172
«7
McGregor, J. and J.
Jeffrey, it .
96
48
M*Gregor, J.
Gtlehrbt, D.
260
562
McGregor, J.
Wright, J.
416
Sftfc
MlntosVi, C.
M'Kettoe, M.
417
Mt
Mlntoeh* R.
Watt, J.
199
SS4
Mackay, J.
Ritohii, A.
99
161
Mackenzie, J.
Tait, C.
197
S3S
Mftencie, M.
McCartney, A. <
202
ss#
Mltensie, Mrs. &c.
. MILentie, A.
999
7*
BSfCenrie, M.
Stafibrd, Marquis of, &c.
496
sat
M^Kenrie, P.
Barns, A.
MM
174
ftPKenzie, T. &c.
M'Kenflde, A.
S9»
7»
Mltinlay, Mrs. &c.
McLean, C.
ist
-tit
M'Kirdy, Mrs.
Cumngham and Bell,
187
SIS
M*Lachlan, J.
Rickman and Parry,
928
70*
M'Leay and Horne,
note, If.
498
ast
INDEX OF NAMES*
XkX
Defenders.
M'Leish, J.
M'Mnrda or Pringlc, Mrs.
Anne, &c.
MWair and Brunton,
Macneel, A. &c.
M'Neill, Lieut-Colonel
M'Neill, Mrs. E.
M*Nilidg e, A.
M'Phail,
Macpherson's Trustees,
Magistrates of Auchter-
muchty, &c.
Magistrates of Brechin,
Magistrates of Dingwall, &c.
Magistrates of Edinburgh,
Magistrates of Glasgow,
Magistrates of Tain,
Maitland, F. L.
Manuel, Mrs.
Manuel, ■■
Martin, W.
Mather, W. &c.
Matheson, Mrs.
Matde, Hon. W.
Maule, Hon. W.
Millar, A. &c.
MiUer, O.
Miller, G.
Miller, J.
Miller, M. &c.
Miller, P.
MtQer^s Creditors,
MUligaa, P. &c.
Mitchell, A.
Mitchell, Colonel, &c.
Mitchell, J. and J.
Mitchell, W. &c.
Moffat and Couston,
Moir, W,
Montrose, Duke of
Moray, Earl of
Moray, Earl of
Morrison* J. &c.
Muir, J. Executors of
Mtmro, D.
Murdoch, J.
Mure, W. &c. (Corrie's
Trustees,)
Murray) D.
Pursuer**
Ramsay, W. and J.
Bucckuch and Queensberry
Duke of
M'Nair, J.
Trustees of R. V. Agnew,
M'Neill, D.
Monro, D.
M'Culloch, J.
Glennie, W.
Maopherson, Captain
> Phin, J.
Officers of State,
M'Kenzie and Munro,
. MTarlaae, A. &c.
Aitkea, R. &c.
Rose, H. &c.
Meldrum, A.
Cotton, G.
Cottso,
Graham, 8.
Carrick, D.
Pedie, J.
Hunter, D.
Masks W.
MilfcoUan, D.
Wilson, A.
Guthrie, A. M. &c.
Thomson, A.
Morrison, J. &c.
8mith, J.
MiUer, J.
. Milligan, Dr.
Pasenan, D.
Stewart, D.
Wilson, J.
Peter, W.
Cook, J.
M'Neill or Jollie, Mrs. &c.
M'Farlane or Graham, Mrs.
Lestiey Rev. W.
Eyre, J. &c.
Miller and Carrick,
Farie, J. &c.
Moir, A, &c.
Dollar, J.
K Sproat, J.
Maokay, G.
No.
l'a&t-.
00
72
' 305
677
223
372
182
309
49
72
149
251
247
476
65
100
399
826
317
690
303
672
205
339
298
665
84
136
447
911
418
857
256
5«8
Note.
659
132
2*1
128
211
63
97
144
238
J51
256
105
170
12
20
328
711
871
789
192
322
204
338
461
929
126
206
29
48
124
204
189
318
118
198
361
774
33
4f
, 24
38
167
284
448
912
301
671
428
878
190
821
108
•38
47
66
. 22*
34
Napier, J.
Scott, Mrs.
234 414
INDEX OF NAMES.
Defenders.
Pursuers.
No. 1
Pige.
Nelson, J.
AMerson, H.
438
899
Nicolson, D.
Doalop, R.
451
915
Ninian, Q. D.
Smythe, J.
6
8
Nisbet, A.
Sfnythj C.
229
888
Noble, R.
« naeiBie, l.
219
367
O'Henry, D.
Wright and Anderson, .
184
311
Officers of State, &c.
Phi*, J.
817
690
^^V M* J* £*% am A
f Wlgtn»«hir*».ir.nmmi<BriAnPTR
|359
am**^m
Officers Qt State, &c.
\ * of Supply of
767
OgUvie, .W.
Chalmers, D.
276
544
Oliver, T. and A.
Brown, J.
400
831
Orr, R.
i Heritors and Kirk-Session of
\ Glassford,
^456
921
Oswald, R. A. &c.
Little, 0.
288
558
Oiichterlony, J.
Lyuedoch, Lord, Ice*
216
858
Oughterson, J. &c.
Robertson's Trustee,
886
809.
Park, R.
W«ddel, W.
131
221
«
i Buchanan, A. (Collector of
■ ^
Barker, C. S.
3 Poor Rates for the City of
S280
890
•
I CHragow,)
Pentiand, G.
J .
«
Patendn, D.
482
889
Patison, J.
Oswald) A.
81
127
Patison, J. jun.
Scott, T.
106
172
Paton,G.
Young, G.
94
151
Paul, H. &c.
• Sutherland, D.
326
708
Peebles, C.
Greig^J.
346
783
Peterborough's Executors.
Earl of
> Representatives of J. Innes
, 309
681
Pinkerton, R.
Alexander, A.
115
185
Pollock, Gilmour, & Co. &c.
Girdwood, C. and Co.
254
507
Porterfield, J. C. &c.
Duncan, J.
74
111
Porterfield, J. C. &c.
Houston's Executors,
76
115
Porterfield's Trustees,
Porterfield, J. C.
867
784
Pringle or AFMurdo, Mrs. &c
.J Duke of Buccleuch and
| Queensberry,
$305
677
Queessbeiry's Executors,
Duke of Buccleuch and
Duke of
Queensberry,
304
805
676
677
Railtoa,G.
- Hunter, W.
- Maxwell, M.
' Mmfe>W.
806
464
194
678
985
828
Ramsay, J.
Morrison, J.
98
150
Ramsay, W. R.
Soot, Rev. D.
220
867
Reid aid Monach,
Lang, J.
18
21
Reid, A. &c.
Hatnall, J. B.
165
277.
71*
Reid, A.
Jobeen, D.
332
Reid, J. and J.
Dunlop, R.
376
/WO.
INBtfiX OF NAMBR
xxi
Defender*.
Pursuers.
No. 1
Page.
Renfrewshire Banking Co.
Sanders, G.
288
565
Rintoul, R. &c.
Anderson, A.
350
744
Robertson, Mrs. Ann
M'N«el, A. &c.
821
696
Robertson, Mrs.
Davidson, R.
854
751
Robertson, J.
Young, W.
249
482
Robertson, J.
Young, W.
251
502 '
Robertson, R. &c.
Smith and Tasker,
.412
848
Robertson, W. &c.
M'Kenzie, D.
818
604
Romanes, J.
. Gordon, R. &c
59
91
Ronaldson, Mrs. &c.
Kay, A.
181
309
Rose, H.
M'Kenzie, M.
453
916
Ross, A.
Spence, W.
9
17
Ross, G.
Munro or Rose, Mrs. C.
294
605
Ross, W. &c.
Lockhart, Mrs. &c.
87
136
Ronghead or Dickson, J.
Hunter, J.
235
417
Royal Bank of Scotland,
Gordon, A.
102
164
Sandeman, P.
Bruce, W. &c.
299
668
Scott, D.
Srakine, J.
366
788
Scott, J.
Clarke J.
73
109
Scott, W.
- Cranstbun and Hay,
46
62
Scotland, Bank of
Smith, J. &c.
64
98
Scotland, Bank of
Padon, J.
109
175
Scotland, Equitable Loan
Company of
> Lennox's Trustee,
117
192
Scotland, Royal Bank of
Gordon, A.
102
164
Selkirk, Magistrates of, &c.
Hope, A. &c.
353
749
Shand's Trustee,
Earl of Aberdeen's Trustee*
h 387
724
Shaw, J.
Boyd, J.
Falconer, T. &c.
288
413
Sheills, J. and Company,
456
919
Shirra, W.
King, J.
188
231
Simpson, J.
Cochran, J.
314
687
Simson, W.
M'Lean, J.
18
29
Sinclair and Nisbet,
Hopldrk, T.
162
278
Smith, A. &c.
Dove, J. and W.
346
784
Smith, Jane
Mlfieraie, T.
116
189
Smith, J.
Campbell, J. jun.
373
794
Sommers, W.
Anderson, W.
36
49
Soutar, J.
Soutar, A. Representatives of 422
876
Spears, J.
Maccallum, A.
274
541
Spence, A. &c.
Magistrates of Lauder,
225
875
Spence, J.
Tony, A. &c.
898
825
Stair's Trustees, Earl of'
Earl of Stair,
248
476
Stein, Misses
Stein, R. &c. ,
66
101
' Stevenson, N.
' Rowand, M.
442
903
Stewart, D.
Gibson, W.
380
803
Stewart, 6.
Sfet,D.
408
841
Stewart, W.
Barbour, G.
284
559
Stirling, Fleshers of
Dick, J.
159
268
Stirling, Sir S.
Fair* W.
176
306
Straton, D.
Gomiay, A.
381
804
wdi
INDEX OF NAMES.
Defender*.
Pursuers.
No.
Page.
Swan, H. &c.
Allan, R.
155
261
Tain, Magistrates of . .
* •
Rose, H. &c.
447
911
Tait, C.
. i Duke of Queensherry's Eara-
. ( . outers,
Vn
180
*
265
521
Taylor, A.
M'Kenzie, M.
457
WAX
925
Taylor, M. &c.
Mein, A.
864
779
Thorn or Fiddes, Mrs. M.
Irvine, P.
«72
534
Thomson, G. &c.
Sharp, J.
838
7*4
Thomson^ J. T.
Murray, J. &c.
ZB
50
Thomson, J.
Napier^ J.
295
658
Thomson, Mrs. 8tc. •
Cunningham, M. &c.
390
814
Thomson, W.
Murray, R.
.113
183
Thomson, W.
Megget, T.
164
275
Thornton, R.
Dye, J. &c.
114
185
Threshie, R.
Kirkpatrick, J.
287
506
Trotter, Sir C. &c.
Lockhart, Mrs. &c.
87
136
Trotter, W. See.
Trotter, Y.
57
78
Trustees of Farquharson,
Scott, A.
320
695
Trustees of D. Kyle,
Trustee of T. Kyle,
122
203
Trustees of Shotts and Air-
drie Road,
> Aitken, R. &c.
84
135
Turnhull, J.
Pollock, W.
119
195
Turnhull, J.
Sharrat, S.
217
361
Turner, J.
Brown, J.
191
321
Underwood, W.
Marston, J. and M.
120
200
Underwood, W.
* Martin, W.
365
783
Urquhart, Mrs.
Borthwick, P.
146
242
Virtue, J. and Company,
Horsefidl, A. and J.
23
36
Walker, J.
Reid, Captain J.
90
146
Walker and Russell,
Crawford, J.
152
259
Walker, Sir P.
Gibson-Craig, J.
409
84$
Walker, W. F.
Tutors, Earl of Eglintoun's
236
418
Walkimhaw, &c.
Gillespie, Wright, and Co.
357
764
Wallace and Dunn,
Austin, I. and S. &c«
110
177
Wallace, W. &c.
Cockbum, J. &c.
09
106
Wardrop, J.
Lawson, J.
86
136
Watson, Janet
Wright, J.
293
604 '
Wedderhurn, H. S. &c.
Atholl, Duke of, fcc.
95
158
Wedderspoon, W.
Hodge, P.
153
261
Welsh, W. A.
Forbes' Trustees,
249
497
Wemyss and Walker,
Brown, W.
828
708
White, Dr. &c.
Arret, C.
260
517
Whitehead, Dr. R.
Rowat, J.
10
19
Wight, G.
Taylor, J.
377
797
Wightman, J.
Kennedy, A. &c.
415
852
Wighton and M'Kenzie,
Kilpatrick, W.
435
895
INDEX OF NAMES.
xxi 11
Defenders.
Wigton, Magistrates of
Wills, J.
Wilson, J. and Son,
Wilson and M'Lellan,
Wilson, R.
Wright, R. &c.
Wright, T. &c.
Wyllie, Mrs. J. &c.
Yorstoun, Rev. J.
Young, Dr.
Young, J. &c.
Young, J. &c.
Pursuers. No. Page.
I Commissioners of Supply of ) 3AQ 7ft-
\ Wigtonshire, )
Gibson, Sir A. C. M. 52 74
Girdwood, C. and Company, 254 507
Fleming, B. 445 906
Miller, T. 459 926
Borthwick, P. 171 293
Roy, W. &c. 70 107
Hamilton, H. 333 716
•
Middleton, M. and E. 100 162
Ferrier, C. (Lyell's Trustee,) 196 332
MacRitchies and Murray, 147 242
De Witt, Mrs. Alletta 180 309
ERRATA IN VOL. V.
P. 34, Case No. 23. Ordinary's name, for Lord Mackenzie wad Lord Mtavyn.
P. 52, Case No. 40. for parties' names as at present printed, read merely J. Millar,
CompUuner.-Sol.-Qen. Hope.
P. 56, Case No. 43. Ordinary's name, for Lord Eldin read Lord Msdwpn*
P. 85, line 7* from foot, for heirs read heir.
— — line 15. from foot, tor freehold and copyhold re^A freehold or copyhold.
P. 186, line 24. for Ardrossan read Kilbride.
P. 287, line 6. for consumpte read consumptm.
P. 341, line 1st of title of No. 907. for had who read who had.
P. 352, line 1. for 1822 read 1812.
P. 367, last line of No. 219. for 1820 read 1826.
P. 408, line 14. for 1772 read 1672.
P. 425, last line, for absolute effect a/read effect of absolute.
P. 506, line 35. for suspended read superseded.
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